free_spirit_etc

Listen to Hoppy! (I have been reading over many of his older posts and I still find them very helpful!)

I agree with bronco on this. Even if the car wreck didn't cause the injury, it looks like it occurred, or was aggravated, in service. Especially if you had no complaints of back pain until the last year of service, and then frequently complained of back pain after that time. If it started hurting right after the car wreck, it sure would seem like that would have been what started it. But even if it didn't, going from not having back pain to having frequent back pain occurred while you were on active duty. If the doctor diagnosed it in service, then it should be in your SMRs. Did the RO get a medical opinion stating that it did not start in service? Did you get a C&P at that time? You will want to get a copy of your C-file and see what the medical opinions said. If you got a C&P at a local facility, you should be able to get copies of your C&Ps from them. I was surprised at the difference between what some of the C&Ps actually said, and what the RO said they said when going over my husband's file. There was one condition that the C&P examiner clearly pointed out started in service - that had been diagnosed in service, that the RO denied without mentioning that the examiner noted it started in service. It would be hard to know if there is a CUE without seeing what evidence the VA had, and what they decided on the evidence. But you really need to work on getting it service connected, and then you can ask for an earlier effective date if there was a CUE.

Do either of thse help? Title 38 3.155 - Informal claims. (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. § 3.157 Report of examination or hospitalization as claim for increase or to reopen. (a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of § 3.114with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. (Authority: 38 U.S.C. 5110(a) ) (b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling. (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (Authority: 38 U.S.C. 501 ) (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. (3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (b)(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee. [26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24, 1995]

Dang... I know there is a reg that you can have an informal claim if you were treated or evaluated for a condition by the VA, and that you have one year to file a claim after that.

Is this for an increased rating?

broncovet, Good luck! I wish I was able to find something that would help you.

"I think he's safe, especially since he had a lawyer. I see no reason to cause him any worry J. jmo" Oh good! I hope that he is! And by the way livefree - Welcome to the Board, and thank you for your service!

So, I guess the question is what should the Vet do now (aside from contacting his attorney)? Should he notify them and ask them if the effective date was an error, and ask them to change the effective date to July? (I would suggest apologizing from not contacting them sooner, but point out the mental problems he has been having that resulted in being hospitalized twice). Or should he just keep keeping on -- and making sure he keeps good records - and be ready to fight if they try to take the TDIU away when he files his annual report?

"They will cue the issue, take the IU and possibly re award the later date." Hopefully they will re-award at a later date. I would think that 2 hospitalizations for the SC condition between July and September would be considered in the Vet's favor.

"Personally, I think you're safe, since you are no longer working. I would just wait it out and save some money, just in case. jmo" That is encouraging news - because I think this is something that could happen to veterans - that the VA makes a decision on an inferred claim for TDIU, and ends up granting them benefits for a period of time they were actually working.

Wouldn't this help the Vet? http://www.tftptf.com/Misc/TDIUFastLetter.pdf "Additionally, if the evidence shows that the Veteran actually is engaged in a substantially gainful occupation, the TDIU evaluation cannot be discontinued unless the Veteran maintains the gainful occupation for a period of 12 consecutive months. See 38 C.F.R. § 3.343©. Once this period of sustained employment has been maintained, the Veteran must be provided with due process before the benefit is actually discontinued, as stated at 38 C.F.R. §§ 3.105(e) and 3.501(e)(2). This consists of providing the Veteran with a rating that • Proposes to discontinue the IU benefit • Explains the reason for the discontinuance • States the effective date of the discontinuance, and • States that the Veteran has 60 days to respond with evidence showing why the discontinuance should not take place." Especially If he was granted TDIU on an inferred claim? The fact that he no longer worked after July 2013, and was hospitalized two times between July and September - As the claim has already been granted, the evidence is not showing that he was able to maintain gainful employment for a period of 12 consecutive months.

"It's entirely possible they will pull your IU, require repayment and then you're facing a huge uphill battle to get IU again. You had two choices. Notify the VA you were working or quit working and then notify the VA. From where I stand it appears you got greedy. Working and IU. What a deal. Poverty level is just a number. What matters is the ABILITY to work. You've shown that you are able to work. Good luck." Giving the Vet the benefit of the doubt here - it looks like he wasn't notified of the decision until July and that he quit working when he was notified of the decision. He did not continue to work and draw TDIU. The problem is that the VA granted TDIU retroactively to where it covered a period he was working. And giving the Vet the benefit of the doubt, he says he didn't even ask for TDIU. So I am not so quick to jump to the conclusion that the Vet did anything wrong. Nor would I suggest the Vet immediately contact the VA until he takes a little time to find out where he stands, and what he needs to do. He has also been hospitalized two times since July of this year. I think it would be more helpful to try to help him figure out what he needs to do moving forward, than to chastise him for what he should have done, especially considering he didn't even ask for TDIU. It would be different if he would have filed for TDIU and lied to the VA about his working, or if he would have continued to work knowing that he had been granted TDIU. But considering he was notified of the decision in July, has not worked since he was notified of the decision, and has been hospitalized twice in a short period of time; I think he is still within a reasonable time frame to notify the VA of the error (if indeed, he needs to do that) - and that he is doing the correct thing by finding out where he stands and what he needs to do before notifying the VA.

"That is a fact. There may be some issues up and coming. You should have called them when you got the decision and told them you were working. Then re-filed for it in July when you stopped." From reading his post, it looks like he was notified of the decision of July, and the decision informed him that he was eligible for TDIU effective February 2013, and that he stopped working when he was notified of the decision.

I want to add a disclaimer here that I am not familiar with TDIU claims, and am merely trying to point out some things that I noticed that might be helpful. I agree that this could cause some problems. But it would seem like if you did not ask for TDIU, but the VA granted it, that would be different than if you specifically applied for it stating you weren't able to work, or stating that you were not working when you were. It could be that the VA made the assumption you would not be able to work based on your level of disability. And it could be that your lawyer asked for it. You probably want to get ahold of your lawyer on this. The lawyer might be able to help get it straightened out. You say that you worked until July, as your employer kept you on until you received your benefits. So I am assuming you just got notified of the decision in July. And you also say your employer kept you on even though you were no longer able to work. Would it be possible that your employer would verify they kept you working as long as they could, though your work was not up to par? If they tried to do you a favor and keep you on, they may be willing to help. It would seem like a statement from your employer that would indicate that your work performance started declining in ___, but they tried to keep you on and give you a chance to get it turned around would help. Would there be any records in your employee file about work problems, excessive absences, etc. that you might be able to get? Also I would think the fact that you have been hospitalized two times since July would be a relevant factor here. I am not sure if you would have repay the TDIU benefits received from February - July, as you were working. That is something you would still need to find out. But I think that you still want to work on building a strong case that you are no longer able to work as of July. It would seem like losing your job and being hospitalized twice in a short period of time would be pertinent factors. I am not so sure I would agree that you need to contact the VA immediately. I would recommend you talk to your lawyer, and get some information on where you stand first. But I would suggest that you do that as quickly as you can, and see if you need to contact (or have your lawyer contact) the VA in the near future. I am not sure if you need to repay any benefits, or if you need to try to establish a later effective date of TDIU (to July). I would not suggest that you wait until next February and just send in your earnings statement, and hope they don't cut off your benefits. I would be proactive on this and find out what you need to do now.

I got the book and it is very interesting. Of course, some of it is in retrospect for me now, since I am already at the BVA level and already had my hearing (kind of sort of). I think the book makes an important point of doing the best you can with your claim throughout your claim. I pretty much made the assumption I would not win at the RO level. So I didn't even bother to get an IMO until my claim was certified to the Board. I am not sure if working my claim harder would have made a difference at the RO. But after seeing their pattern of pretty much ignoring the evidence we sent and twisting the evidence they had (as in previous claims that my husband had when the VA doctors clearly connected my husband's disability to the SMRs -- but in a different way than he was claiming) - I just figured I was wasting my time and causing stress to ever try to convince them of anything. But I did notice on my claim that the SSOC wasn't just a replica of the SOC (like they had been before on my husband's claims). So maybe the RO has actually started to play the game a bit differently - and I might have been able to get my claim granted at the RO level.

"So far I am passing you 4 months to the day his file was requested... not an end in sight :dry:" I don't even remember how long it took me. I do know we asked for a copy around July / August 2006 and we didn't receive a copy before my husband died in February 2007. So after he died I had to fill out a new request, and had to get in line again. At that time the RO informed me it would be at least a 6 month wait.

"I requested and got mine in about 6 weeks. When I got to the BVA I found that BVA judge had about twice as much of my file as I did. My lawyer requested what the judge had right then and there. How can you get a fair hearing when you don't have the same evidence as you adversay?" Hmmmm - when I think about it, there seemed to be a whole lot more in my file at the hearing than what I recall getting. I got a lot. It took 2 priority boxes to send it. But the judge had a stack about 2 feet high. I didn't get a chance to look through it though, because the VSO had the file before the hearing. Is there a way to request just the stuff I don't have? I got a copy of my C-file, but it was missing the back side of the medical opinion used to deny my claim. I kept asking for a copy of the rest of the opinion - and they kept telling me I had to send them the date the opinion was written and the name of the doctor who wrote it to get a copy. How in the world would I know who wrote it when I didn't have a copy of the part of the opinion he signed? I finally contacted an email Berta posted of people who were supposed to help with survivor benefits. They emailed back and said they would forward my email to the appropriate person. After months of trying to get a copy of the medical opinion - the VA sent me another copy of the whole C-file. But they also let me know that it was my SECOND copy and that I would be charged if I wanted anything else. (I hadn't asked for an entire second copy. I had just asked for a complete copy of the VA medical opinion that was used to file my claim). I sure don't want to pay for copies of ALL that stuff. But I would be interested in getting a copy of the stuff that is in my file that I don't have yet.

Thanks Harleyman. I keep trying to find someone that will help broncovet - and it just looks like I am arguing with him the whole time. Maybe you will be able to find something.

http://www.vba.va.gov/pubs/forms/VBA-21-0538-ARE.pdf VA FORM 21-0538, Status of Dependents Questionnaire, APR 2013 states: "NOTE - Please provide the following information for each child under age 18, over age 18 and under 23 and attending school, or of any age if permanently disabled. If you have more than four children, list the others in Item 6, "Remarks," giving the information requested in Items 4A thru 4E. If you have no children in any of the categories described above, write "None" in Item 4A." This form was updated April 2013. So again... dang... I am not finding anything to support your position.

"I looked at the "new" CFR 38 3.667, and the age 23 max has been deleted, except for accrued benefits, as follows. It looks like the VA made a change in regs, and the dependent benefits do not end at 23, but instead end when the college age kid no longer goes to college. This is consistent with M21:" I am not sure if the max of age 23 was deleted from CFR 38 3.667, or if it was never there in the first place. I am not sure they have changed the regs. Because the regs concerning the definition of child § 3.57 says "(iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. 3.667 covers payments based on school attendance, but to get dependent payments based on school attendance (3.667), you would first have to be considered a child (under 38 3.57). I have found that it is hard to piece together all the regulations, because one will talk as if something doesn't matter, but I don't think they can be taken as a complete single regulation, but have to be taken within the context of the other regulations. It would seem like if you can only get paid based on school school attendance if you are a qualified child, then whether you are a qualified child would be controlling. If you don't qualify as being a qualified child (under 23) then you couldn't qualify based on school attendance. The school attendance regulations would only come into effect if you had already met the standard of being a qualify child. Again, I am not trying to be difficult, and I really wish I could find something to help support your position. When do you think the VA changed the regs? If they did, then you might be able to get some info from the legislative history that notes the change and the reason for it. That would add support to the position that the regulations had changed and that a child could still receive dependent benefits past the age of 23.

(a) General. (1) Except as provided in paragraphs (a)(2) and (3) of this section, the term child of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and... (3) Subject to the provisions of paragraphs © and (e) of this section, the term child also includes a person who became permanently incapable of self-support before reaching the age of 18 years, who was a member of the veteran's household at the time he or she became 18 years of age, and who was adopted by the veteran, regardless of the age of such person at the time of adoption. © Adopted child. Except as provided in paragraph (e) of this section, the term means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. The term includes, as of the date of death of a veteran, such a child who: (1) Was living in the veteran's household at the time of the veteran's death, and (2) Was adopted by the veteran's spouse under a decree issued within 2 years after August 25, 1959, or the veteran's death whichever is later, and (3) Was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support.

Thanks Berta. I am sorry I already had edited my initial post, editing out a lot of personal information. Thanks for the links. I have already read most of the information in 38 CFR. Thus far, my son's claim has only been denied on the basis that my husband wasn't service connected for the cause of his death. But I haven't been too concerned about showing that my son was disabled prior to reaching the age of 18. I never had a fight with Social Security in regard to finding my son disabled. Their own doctors determined he was disabled when he was 14. My concern about eligibility for the VA is based on his age when he became a member of the veteran's household. My son was over 18 when I met my husband. From everything I read, he would be eligible in respect to being incapable of self-support before the age of 18, and he would be eligible in respect to being my husband's adopted child. But from everything I read, a helpless child has to have been a member of the veteran's household prior to the age of 18 in order to qualify. I kept hoping that maybe I missed something.

brocovet, I am not trying to be difficult here. I have tried to find something to support your claim, but I am not finding anything to support it.

bronchovet, I am sorry. I have looked for some cases, but I think this would be a tough one to fight. I can see where the child can continue to get educational benefits. But it doesn't look like they get dependent benefits past the age of 23, unless they are incapable of self support prior to the age of 18. http://search.uscourts.cavc.gov/isysquery/63fcb67b-35bb-44d8-b3c8-e045a46bd7d5/11/doc/ See 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.1000(d); see also Burris v. Principi, 15 Vet.App. 348, 353 (2001) (concluding that 70-year-old appellant was ineligible for accruedbenefits since he did not satisfy statutory definition of "child" in 38 U.S.C. § 101(4)(A), which excludes anyone over age 23 unless they were "permanently incapable of self-support" before attaining age 18) http://search.uscourts.cavc.gov/isysquery/63fcb67b-35bb-44d8-b3c8-e045a46bd7d5/18/doc/ An additional allowance for a spouse and children may be paid to veterans who are receiving compensation or pension payments. Surviving spouses are entitled to additional [dependency and indemnity compensation (]DIC[)] or death pension for the veteran's children. Payments for unmarried children can be continued until the child reaches 18, until age 23 if the child continues in an approved school, or indefinitely if the child becomes incapable of self-support prior to age 18. I get all tripped up looking at the Regs on the child's issue too. They say something in one place that seems to conflict with something somewhere else. But I keep running into child's dependent benefits end at age 23 (though the DEA benefits can continue).

I am coming up with child's benefits stop at 23 (not the educational benefits, but the dependent allowance.) http://www.va.gov/vetapp13/Files2/1313867.txt "A child is defined as an unmarried person who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57(a). The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. §§ 3.503, 3.667."