Inferred Claims/effective Dates

[Vync]

Inferred claims/effective dates

This might be a bit wierd...

Regarding inferred claims and effective dates, I understand that if you seek medical treatment within 12 months of your claim request, then the EED is the date when treatment was sought.

Given this hypothetical situation, what would be the effective date?

Jul 2007 - Office visit, condition diagnosed, prescribed monthly medication to treat condition

{insert 3-4 VA telenurse refill calls}

Aug 2009 - Office visit for condition

Oct 2009 - Filed claim for condition

The medication refills were requested every month and renewed via VA nurse line as needed.

Would the effective date be Jul 2009, Aug 2009, a VA telenurse refill call between Oct 2008 and Jul 2009, or by oldest date where refills were received?

I'm curious if the VA defines the inferred date based on an office visit, telenurse refill calls, or merely because the Vet was receiving medication for the condition (i.e. receiving treatment).

Thanks

[john999]

When you had the heart attack it was not presumptive for AO at that time. If you had filed a claim for heart disease in 1993 you would come under Nehmer. You have nothing to lose so I think I would try and file a claim as an inferred claim under Nehmer. I don't know if you will win. The VA perhaps should have inferred a heart condition as secondary to PTSD. I think I would seek out a lawyer and see if there is any way you can fight this. The VA is going to say NO right off the bat I think, but that means nothing.

[Spadoman]

When you had the heart attack it was not presumptive for AO at that time. If you had filed a claim for heart disease in 1993 you would come under Nehmer. You have nothing to lose so I think I would try and file a claim as an inferred claim under Nehmer. I don't know if you will win. The VA perhaps should have inferred a heart condition as secondary to PTSD. I think I would seek out a lawyer and see if there is any way you can fight this. The VA is going to say NO right off the bat I think, but that means nothing.

I received a Nehmer decision regarding my claim for IHD on May 24, 2011. The VA gave me a 10% disability from 2000 and added SMC-S from 2003 to the present. I am pleased with this, but thought they should go back to what I see as a possible Inferred Claim from 1993.

I wrote a letter to my Power Of Attorney at the DAV after I received the decision. I sent them copies of the C&P exam that mentions my heart disease from 1994. I asked them to advise me as to whether or not I should file a new claim, ask for reconsideration, file a Notice of Disagreement, (NOD), or not do anything at all. I got a letter today from the DAV and they filed a NOD. They included my letter to them outlining why I disagree and also the copies of the C&P exam from 1994. (I filed a claim for PTSD in 1993, the C&P for that PTSD Claim was held in 1994) So the waiting begins again.

I am claiming that my disability in 2000, which the VA says was 10%, should be higher based on the medical records from a 1993 Heart Attack at the VA hospital in Grand Junction, Colorado. (Same place I files the 1993 claim and had the C&P exam for PTSD in 1994) I am also suggesting that it is an Inferred Claim since the doctor mentions the Heart Disease at the 1994 C&P exam. It is in their hands. I won't appeal any decision they make, but it looks like the DAV Regional Service Office agrees that I should ask for the NOD. I quoted the page numbers and sentences from the Nehmer Training Manual. Wish me luck.

Edited June 15, 2011 by Spadoman

[broncovet]

Spadoman...

Gee, I was in Grand Junction in 1993...we may even have known each other.

The VA has a 3 part test, called the Brokowski test, to determine if an informal claim meets the criteria of a "claim" for the purpose of an effective date. The 3 criteria are: 1) It has to be in writing 2) The Veteran has to show intent to file for a benefit and 3) The Veteran must "specify the benefit sought". I have posted before, on the 3 part Brokowski test.

The difference between a new claim and a claim for increase could be somewhat important. You see, the Veteran need only make ONE formal claim, and other informal claims reference it. A formal claim is on a form prescribed by the Secretary, I think the form number is 21-526. The reason this is important is this is the earlest effective date. The VA simply wont award benefits before you ask for them.

An "inferred claim" is different than an informal claim. "Inferred means implied". I think M21 manual still uses the word "Implied", not inferred. One example of an inferred claim would be if the Veteran were awarded 100% plus another 60% (under Bradley vs Peake guidelines) then a claim for SMC S would be inferred and the VA would have to adjuticate eligibility for SMC S. (but they usually dont, so you have to appeal it) The Veteran meeting Bradley Vs Peake guidelines does not have to apply for SMC S, the Va is supposed to adjudicate it for him whenever he meets Bvs P 100 plus 60 guidelines. That is, whenever a Veteran meets the 100 plus 60 guidelines, the Va is supposed to infer SMC S. There are, of course, other methods of "implying" a claim.

[john999]

Spadoman

I would keep fighting this all the way at least until I get a rating back to 93-94. I would appeal that 10% rating as well. You had a heart attack. Get more tests and keep appealing. I went from 0% to 60% just by appealing a heart rating and getting some tests I should have had to begin with by the C&P doctor. Unless there is no way you can squeeze another dime out of the VA keep appealing. If you don't get it someone else will.