Can someone help me with VA math? First condition fibromyalgia Increased from 20 - 40% and IBS increased from 10 - 30%. I just received a call the Office of Case Management in D.C.regarding my EED of 2009 for both conditions. Award was processed yesterday and when I asked Ms. K.S. the amount of award she says $4,650. I'm experiencing mixed emotions here. Gratitude and shock. I'm grateful for the $$ and the fact that someone reached out to me inspite of it being Trumps inauguration day but I'm also shocked because I was figuring it would be more since the EED is 2009.
I questioned Ms. K.S about the amount and she said it was rated based on all my combined s/c conditions, which doesn't make since because only two conditions were increased with EED of 2009. Ms. K.S. also said she also see that they received my appeal in 2016 and anything prior to that was handled through my local regional office in St. Pete. She also said that she doesn't see a decision on the migraines and respiratory conditions on appeal. So she's sending it back to the VLJ because those issues were overlooked. She ensured me that I will hear from her again once everything is finalized. I'm still blown about the $4.650 retro though. Thanks for the feedback.
When a Vet has a DRO hearing in the 'wings,' is that the time for them to present additional evidence of all their secondary conditions that the veteran has developed since their initial dx as the years went by. Will it effect the veterans EED if the Vet does so if they present the evidence at the hearing...? Is there a 'proper' way to do this, and what are the pros and cons of 'off the record' vs 'on the record' concerning DRO hearing protocol...?
hello all, I finally got it figured out. Here is the info that I eluded to on a different thread refering to EED.
I found this in my C-file while searching for info for a different contention. I had a exam this past summer and was rated 30% for pes cavus w/planar fasciitis, bilateral. Does this qualify for a CUE or EED? There is no decision regarding the foot exam.
MED VA GOV DATE OF EXAM APR 17 2006
The veteran is claiming an Increase in residuals of a Left ankle injury please provide current symptoms including painless range of Motion In degrees for the condition noted above also note if there is additional loss of motion or fatigability with repetitive movement
REVIEW OF MEDICAL RECORDS
C-file was not available for review Medical documents regarding Veteran dating back to April 13 2005 until present day have been reviewed
MEDICAL HISTORY This is a 32-year-old male who is service connected for a left ankle injury sustained while serving in the United States Marines fall/winter of 1997 following initiation of a new exercise regimen for Physical fitness during his active military career He was attached to a reserve unit at Willow Grove and began a new exercise regimen following what the veteran States was a more sedentary lifestyle Upon medical evaluation the veteran was recommended to do stretching exercises prior to his exercise routine and Was given a prescription for Motrin for pain He denies any long term Modification in his profile for physical fitness He does relate short duration of light duty for a couple of months and at one point was excused from the running portion of his PT testing. As of May 25 2005 has been followed in the Podiatry Clinic for left arch pain with a diagnosis of calcaneal spur syndrome left foot and has been treated with steroid injections custom molded Inserts night splints and oral nonsteroidal anti-inflammatoray agents.
1 The veteran complains of pain including burning and tingling to the Plantar aspect of the heel and pain along the plantar arch of the left foot Symptoms are aggravated with the extending walking and standing especially during work He complains of stiffness to the lateral aspect of the ankle which occurs Upon initial weight bearing following periods of rest as well as with extended standing and walking The veteran also experiences tingling sensations to the hallux of the left foot with no aggravating factors His left hallux paresthesias have been occurring shortly following a steroid injection to the left heel which was performed on May 25 2005. He denies any swelling heat or redness to the left foot or ankle He denies any sensations of instability or giving way or locking sensation of the left ankle He does experience Some fatigue and lack of endurance to the left foot and ankle which is directly proportional to the degree of pain experienced This fatigue limits his desired amount of ambulation which has affected his work and social life Veteran complains of a limp at the end of his work day secondary to his Pain along the plantar aspect of the left foot and heel.
Currently the veteran is utilizing Naproxen which provides approximately 4 to 5 hours relief with each dose He has attempted the use of Gabapentin in The past for the burning sensation to the left great toe which he Discontinued secondary to alterations in his sleeping pattern The veteran is utilizing a pair of custom orthotics which does provide some arch and heel pain relief and some stability to the left ankle With his current orthotics he has noted significant early wear of the padding following use.
3 The veteran denies any periods of flare up of joint disease however the longer he stands on his feet the more aggravating his foot symptoms become.
4 Vet denies the use of crutches braces canes or corrective shoe gear
5 Vet denies any surgery or injury to the left foot following his active military career Mr Thompson relates in suffering a fracture to the first metatarsal of the left foot secondary to dropping a manhole cover on his foot which is not related to his military career.
6 There are no episodes of dislocation or recurrent subluxation as per the patient
7 There is no relationship of Inflammatory arthritis regarding the patient's claim of service connection
8 Describe the effects of the condition on the veteran's usual occupation and daily activities Vet is currently working as an assistant bindery operator binding small magazines and books spending approximately 8-12 hours a day on his feet His left foot and ankle pain is aggravated with the weight bearing required and is most severe during the end of the day Veteran does perform activities of daily living unassisted Left foot and ankle pain limits the veteran from participating in desired sporting and physical fitness activities
9 Right hand dominant as per the patient though he is left handed with sporting activities
10 The veteran does not utilize a prosthetic device though he does utilize custom inserts and recently has been dispensed (April 10 2006) a pair of custom accommodative orthotics He is unable to honestly comment the response of these Inserts since he is in the break in period of use of these devices. The veteran has utilized posterior night splints in the past which have Provided increase in flexibility to the ankle joint bilaterally
PHYSICAL EXAMINATION VASCULAR Dorsalis pedis and posterior tibial pulses are palpable Bilaterally There is no swelling noted to the foot or ankle bilaterally Skin temperature is warm to cool tibial tuberosity to digits one through five bilaterally equal and symmetrical Positive dorsal hair growth is noted to the foot and ankle bilaterally
NEUROLOGICAL Sharp/dull discrimination is diminished to the hallux bilaterally as well as to the second through fourth digits of the right foot Vibratory sensation is grossly intact, equal and symmetrical bilaterally. Protective threshold is intact with the patient able to perceive the Semmes Weinstein 5 07 monofilament bilaterally Deep tendon reflexes is +2/4 bilaterally.
DERMATOLOGICAL Skin integrity is intact to the foot and ankle bilaterally There is mild hyperkeratosis along the plantar medial aspect of the interphalangeal joint of the hall bilaterally No signs of local infection are noted Skin color is within normal limits with no ecchymosis or erythemanoted to the foot bilaterally
MUSCULOSKELET Left ankle joint range of motion is 14 degrees of dorsiflexion and 34 degrees of plantar flexion which is nontender and without crepitance upon passive and active range of motion Subtalar joint range of motion is 20 degrees of inversion and 10 degrees of eversion bilaterally Subtalar joint right foot nontender and without crepitus upon passive and Active range of motion against resistance For the left foot end inversion of the subtalar joint elicits pain of 3-4 on a scale of 0-10 at the region of the along sinus tarsi Pain of 8 on a scale of 0 to 10 is elicited with direct compression of the sinus tarsi left foot right foot is nontender with similar examination Pain with direct compression of the anterior talofibular ligament is a 6 to 7 on a scale of 0 to 10 on the left ankle Right ankle is nontender with similar examination The calcaneofibular ligament and posterior talofibular ligament are nontender to compression bilaterally There is a negative anterior drawer noted bilaterally and no subluxation of the peroneal tendons with forced inversion eversion plantar flexion and dorsiflexion of the foot and ankle bilaterally Manual muscle strength is +5/5 for the extrinsic dorsiflexors, plantarflexors, invertors and evertors of the foot bilaterally. Pain is elicited with direct compression of the medial tubercle of the left calcaneus The pain is Also elicited with direct compression of the medial and central bands of theplantar fascia of the left foot Right foot is nontender with similar examination There is no lateral bowing of the achilles tendon bilaterally Relaxed calcaneal stance position is 2 degrees everted on the left and 3 degrees Everted on the right Medial arch is maintained during relaxed calcaneal stance bilaterally First metatarsal phalangeal joint range of motion is limited with the left foot measuring 20 degrees of dorsiflexion and 35 degrees of plantar flexion and the right foot measuring 46 degrees of dorsiflexion and 28 degrees of plantar flexion Range of motion is increased as compared to his examination on August 1 2005 Passive range of motion of the first metatarsal phalangeal joint is nontender and without crepitance bilaterally Negative Tinel's sign with percussion of the tarsal canal bilaterally Gait analysis reveals a propulsive coordinated gait which is non antalgic Ani nverted heel strike is noted bilaterally Pronation is noted through the stance phase of gait with resupination noted prior to heel off No early heel off is noted bilaterally Medial longitudinal arch is maintained during The stance phase of gait Symmetric arm swing is noted bilaterally No signs of fatigue are visualized.
Imaging There are no recent views of the left foot however there are prior views taken 4/27/2005 which demonstrate normal bone and soft tissue Densities Lateral view of the left foot demonstrates an elevated calcaneal inclination Angle measuring 28 degrees There is mild spurring to the inferior aspect of the calcaneus as well as enthesis along the posterior aspect of the calcaneus No signs of fracture or dislocation noted No radiographs of the left ankle are available for review An MRI of the left foot performed 3/14/2006 reveals no space occupying lesions within the tarsal tunnel or evidence of a Morton s neuronal There is notation of degenerative changes of the first metatarsal phalangeal joint of the left foot.
1 Chronic Sinus tarsitis left foot with history of chronic left ankle pain.
2 Calcaneal spur syndrome left foot
3 Pes cavus deformity bilaterally
4 Hall limitus bilaterally
5 Pinch callus hallux bilaterally
6 Possible neuritis of the medial plantar nerve left foot
7 Sensory peripheral neuropathy
COMMENTS This is a 32-year-old male service connected for chronic left ankle pain The veteran has a history of left ankle pain aggravated with running, marching and hiking activites performed during active military duties His current complaints of plantar heel and arch pain and lateral foot pain (calcaneal spur/sinus tarsiitis) are at least as likely as not related to the physical Requirements performed during his active military career compounded by his cavus foot structure There veteran suffers from paresthesias to the left hallux which began shortly following a corticosteroid injection for his left heel symptoms which is a possible complication with such treatment however it may also be related to his arthritic condition to the great toe joint Veteran Demonstrates sensory neuropathy to the right hall though nonsymptomatic Though it may be conincidental it is at least as likely as not that his neuritic pain to the left great toes is related to the treatment provided for his left heel pain His bilateral hallux limitus condition and assocaited callus to the great toe bilaterally is not related to the left ankle condition
DeLuca provisions can not be evaluated with medical certainty Though I do not appreciate a decrease in range of motion secondary to pain the veteran may suffer a mild decrease in painless range of motion to the subtalar joint and ankle joint of the left foot with repetitive active range of motion with prolonged walking and standing Reduction of range of motion depends onThe level of discomfort/pain experienced at such time Clinically I do not appreciate any level of incoordination in gait.
Rating Decision May 18, 2006
INTRODUCTION The records reflect that you are a veteran of the GulfWar Era You served in the Marine Corps from November 16, 1992 to November 15 1998 You filed a claim for increased evaluation that was received on March 2 2006 Based on a review of the evidence listed below we have made the following decision(s) on your claim
1 Evaluation of low back strain which is currently 10 percent disabling is continued
2 Evaluation of bilateral patellofemoral pain syndrome which is currently 10 percent disabling is continued
3 Evaluation of residuals of a left ankle injury which is currently 10 percent disabling is continued A 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints This disability is not specifically listed in the rating schedule therefore it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms are closely related Medical records from the VA Medical Center show that you have complaints of pain of the arch, chronic impairment involving the left ankle which warrants a higher evaluation was not noted
Objective examination findings show that you have painless range of motion measured asdorsiflexion of 0 to 14 degrees which is 6 degrees less than no al and plantar flexion of 0 to 34 which is 11 degrees less than no al The right ankle was noted as nontender and without crepitance upon passive and active range of motion The subtalar joint range of motion is 20 degrees of inversion and 10 degrees of eversion bilaterally Manual muscle strength is +5/5 for the extrinsic dorsiflexors plantar flexors mvertors and evertors of the left foot Pain was elicited with direct compression of the medial tubercle of the left calcaneus The pain is also elicited with direct compression of the medial and central bands of the plantar fascia of the left foot Under DeLuca v Brown inquiry has been made as to whether in addition to limitation Of motion there is increased disability due to any weakened fatigability incoordination or painful motion as a result of your service connected left ankle injury This rating includes an assessment of any such increased disability in terms of the criteria for measurable limitation of motion in the Schedule for Rating Disabilities Our letter of March 14 2006 requested that you provide evidence which shows that your condition has increased in seventy To date no such evidence has been received In the absence of evidence which shows that your residuals of a left ankle injury has increased in seventy based on the cntena noted above the 10 percent evaluation is continued
The situation: After appeal using a lawyer, a compensation claim is remanded back to the RO by the CAVC and service connection was then finally granted by the RO but with an effective date inexplicably years after the original claim was filed. A NOD was not timely filed for the earlier effective date (EED).
Question: 1) Is the wrong effective date a misapplication of law and hence a CUE?
2) Since the time for a NOD has run out, is there any remedy to obtaining an EED after that point?
The only issue is for obtaining an earlier effective date back to the date the original claim was filed.
Keeping this simple, isn't the VA supposed to use the original filing date as the effective date of the claim?
Any assistance appreciated.
By KILO 3/5
• My initial claim for Larynx Operation was submitted March 24 1999. • The addendum sent with the March 24, 1999 claim is in my VA record and can verify that Larynx Operation is one of the issues I claimed March 24, 1999. • The St. Petersburg Florida Regional Office had my March 24, 1999 claim for Larynx Operation and other issues for ten years without taking any action. • After ten years of no action on my March 24, 1999 claim, I submitted another claim September 14, 2009. • On October 15, 2009 the St. Petersburg Florida Regional Office mailed a notice to me stating they were working on my claim. It listed all the issues I claimed on the September 14, 2009 claim which are the same issues I claimed on the March 24, 1999 claim. • On January 6, 2010 the St. Petersburg Florida Regional Office mailed a second notice to me, this time stating they had received my claim. This second notice listed the rest of the issues from the March 24, 1999 claim. • The issues they added are not on the September 14, 2009 claim. They were from my March 24, 1999 claim. • They had found my initial claim from March 24, 1999. • Larynx Operation is listed on the initial March 24, 1999 claim and on the September 14, 2011 claim. • The RATING DECISION of July 29, 2011 backdated all awards (0% and up) to the date I submitted my initial claim (March 24, 1999). • The July 29, 2011 Rating Decision deferred three issues: Residual of Larynx Operation, Psoriasis Elbows, and Chronic Headaches. • The above three deferred issues are claimed on my initial claim of March 24, 1999. Residual of Larynx Operation is also on my September 14, 2009 claim. • The May 9, 2013 Rating Decision awarded 0% for Chronic Headaches backdated to March 24, 1999. The initial date of my claim. • A deferred issue on the July 29, 2011 rating decision. • The May 9, 2013 Rating Decision awarded 0% for Psoriasis, Elbows backdated to March 24, 1999. The initial date of my claim. • A deferred issue on the July 29, 2011 rating decision. • The May 9, 2013 Rating Decision awarded 10% for Residual of Larynx Operation backdated to September 14, 2009 (A deferred issue on the July 29, 2011 rating decision). • Larynx Operation is listed on that initial March 24, 1999 claim and on the September 14, 2011 claim. • The 10% award is given a later effective date (September 14, 2009) than the 0% awards are given (not the date of the initial claim for Larynx Operation). • The claim for Larynx Operation had never been adjudicated, not until the May 9, 2013 decision. • The award should be backdated to the date of the initial claim for Larynx Operation, March 24, 1999. From the outline above, can anyone advise as to whether or not I have a case for appeal.
I hope starting a new topic is the correct thing to do.
I won very old SC DIC claim (I reopened in 2007), won in 2009, retro only to 2007.
I am working on getting EED (back to date of death, 1990).
I have a current Decision (denial) dated April 2012, and now must file BVA APPEAL (I-9).
I am working with Bash, he and I noticed the current VARO Decision lists part of the
""Copy of Board of Veterans Appeals Decision (BVA) pertaining to earlier effective date for ionizing radiation exposure disability (No relationship to this claim as this is not ionizing radiation claim) ""
I went back into my records to see where "ionizing radiation" was first mentioned (by them-I never used that term in my claim(s)) to find this in the BVA Decision dated 1994 (my original claim was 1990
and this was the BVA APPEAL to that ongoing claim). This is what I found in the 1994 BVA Denial:
""At the time this case was orinally before the Board in April 1992, it appeared that the appellant had presented a claim which was plausible and, therefore, "well-grounded" within the meaning of 38 U.S.C.A. $ 5107 (a) (West 1991). However, for reasons explained below, we are now of the opinion that the appellant has not submitted evidence of a well-grounded claim. ""
""In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it.
A service - connected disorder is one which was incurred in or aggravated by service, or one which was proximately due to or the result of an established service-connected disability. During the veteran's lifetime, service connection had been established for nodular sclerosing Hodgkin's disease, which was rated as 100 percent disabling. According to his death certificate, the immediate cause of his death in August 1991 was arteriosclerotic heart disease. There were no other conditions contributing to death, and an autopsy was not conducted.""
........"" Arteriosclerotic heart disease is not recognized to be a potentially "radiogenic disease" under 38 U.S.C.A. $ 1112 © and 38 C.F.R. $ 3.309 (d). Consequently, the veteran's fatal arteriosclerotic heart disease may not be attributed to service radiation exposure, 38 C.F.R. $ 3.311b; see also Comboe v Principi No. 91-786 (U.S. Vet. App. January 1, 1993).""
......""Subsequent to the May 1992 remand, the United States Court of Veterans Appeals held that where the determinative issue in a claim involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottviet v Brown, U.S. Vet.App. 92-20 (May 5, 1993). Lay persons are not competent to offer opinions on medical causation. Espiritu v Derwinski, 2 Vet. App. 492 (1992). If no competent medical evidence is submitted to support the claim, it is not well grounded. Tirpak v Derwinski, 2 Vet. App. 609, 611 (1992). In light of this additional case law and the absense of competent medical evidence to support her claim, we must conclude that the appellant's claim is not well grounded. Accordingly, service connection for cause of the veteran's death is not in order.""
Now, my question.... Dr. Bash says "sounds like radiation error; should get EED".....
Can I possibly be awarded EED on this BVA APPEAL as it is related to my 2009 DIC award (retro to 2007) ??
Is it necessary to open a NEW CUE claim in order to use this effectively (with IMO) to go for the EED?
Please can someone help me understand as I do not want to make a mistake here.
I am ready to file the I-9 and I read Berta's "verbage" on exactly how to word what I am "taking exception to".... VERY helpful!
Berta also suggested sending your exhibits (IMO too?) WITH the I-9 for them to have your evidence ......so it is very important
for me to KNOW if I should send all of this as it relates to my current claim for EED of the 2007 effective date of my DIC award.???
IF I need to use a CUE for this, then how would I respond to the current APPEAL?
Sorry to have written a book but I really need advice from you who really understand the law/regs etc., and you needed to know
all these pertinent facts to be clear on what is happening.
Just a word to explain my dilemma, I have had two SO's (AMVETS) and (TEXAS VETERANS COMMISSION) and neither one of
them want to assist or represent me anymore....can you believe it?
Thank you so much!
( original case is in jurisdiction of Houston VARO)
Claims Process – Your claim can go from any step to back a step depending on the specifics of the claim, so you may go from Pending Decision Approval back to Review of Evidence. Ebenefits status is helpful but not definitive. Continue Reading
68mustang posted a question in VA Disability Compensation Benefits Claims Research Forum,I was rated at 10% for tinnitus last year by the VA. I went to my private doctor yesterday and I described to him the problems that I have been having with my sense of balance. Any sudden movement of my head or movement while sitting in my desk chair causes me to lose my balance and become nauseous. Also when seeing TV if there are certain scenes,such as movement across or up and down the screen my balance is affected. The doctor said that what is causing the problem is Meniere's Disease. Does any know if this could be secondary to tinnitus and if it would be rated separately from the tinnitus? If I am already rated at 10% for tinnitus and I could filed for Meniere's does any one know what it might be rated at? Thanks for your help. 68mustang
GlennieHB posted an answer to a question,I have a 30% hearing loss and 10% Tinnitus rating since 5/17. I have Meniere's Syndrome which was diagnosed by a VA facility in 2010 yet I never thought to include this in my quest for a rating. Meniere's is very debilitating for me, but I have not made any noise about it because I could lose my license to drive. I am thinking of applying for additional compensation as I am unable to work at any meaningful employment as I cannot communicate effectively because of my hearing and comprehension difficulties. I don't know whether to file for a TDUI, or just ask for additional compensation. My county Veterans service contact who helped me get my current rating has been totally useless on this when I asked her for help. Does anyone know which forms I should use? There are so many different directions to proceed on this that I am confused. Any help would be appreciated. Vietnam Vet 64-67.
If you are new to hadit and have DIC questions it would help us tremendously if you can answer the following questions right away in your first post.
What was the Primary Cause of Death (# 1) as listed on your spouse’s death certificate?
What,if anything, was listed as a contributing cause under # 2?
Was an autopsy done and if so do you have a complete copy of it?
It can be obtained through the Medical Examiner’s office in your locale.
What was the deceased veteran service connected for in his/her lifetime?
Did they have a claim pending at death and if so what for?
If they died from anything on the Agent Orange Presumptive list ( available here under a search) when did they serve and where? If outside of Vietnam, what was their MOS and also if they served onboard a ship in the South Pacific what ship were they on and when? Also did they have any major physical contact with C 123s during the Vietnam War?
And how soon after their death was the DIC form filed…if filed within one year of death, the date of death will be the EED for DIC and also satisfy the accrued regulation criteria.