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Foxhound6
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Posts posted by Foxhound6
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Quote
When 38 CFR 3.114 applies to a disability claim and an informal claim was received prior to March 24, 2015, apply 38 CFR 3.114 based on date of receipt of the informal claim. Under the historical 38 CFR 3.155, the claim is considered received as of the date of receipt of the informal claim.
Thanks @pacmanx1for that link. That website is great. Wish I would have found it during my reading LOL.
So this here will all help me argue this to BVA if it comes to that. I still will need to wait on my CFile but I feel this would have been the most difficult part to deal with. Waiting on my file is cake.
Basically, Im reading that the 2013 exam I found should serve as the date of received informal claim and would serve as my EED. There was a bit in there that was discussing an exception of this which Ill quote here:
QuoteInformal claims were authorized under 38 CFR 3.155 prior to March 24, 2015. Although the Standard Claims and Appeals Rule revised 38 CFR 3.155 and eliminated provisions for acceptance of informal claims, informal claims may still apply when received prior to March 24, 2015. Recognizing informal claims is important in the proper assignment of effective dates as well as in understanding historical entitlement decisions.Notes:-
There was no standard form for submission of an informal claim.
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Upon receipt of an informal claim, if no prior formal claim had been filed, the applicant was forwarded an application for benefits. The applicant had one year from the date the application was sent to formalize the claim. When formalized within the one-year period, the claim was considered filed as of the date of receipt of the informal claim.
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Informal claims for increase or reopening were accepted as claims.
This is where it will get rocky. I do not ever recall getting any application sent to me or any other notification of a denial or a claim being filed (which is why I am waiting on my CFile). However, if this notification was never done, then perhaps I have a claim for EED to FEB 2013 of my recent MH claim. Still odd that it never showed up in my list of disabilities.
This M21 site has been solid so far. Ill be doing more eye ball drying searching today Im sure haha Truthfully, I am praying this HLR catches it....not holding my breath but, in theory, they should have the ability and knowledge to.
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4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))
also helpful Pacman! This is also my point as well. Although, as you said it no longer is around, it would have been at the time of my informal claim (exam). Very good post Pac thanks again!
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4 hours ago, pacmanx1 said:
Its continued effect means, in part, that any report of examination or hospitalization from a VA or uniformed services facility dated prior to March 24, 2015, without regard to the date the evidence is incorporated in the claims folder, may potentially be accepted as an informal claim if the requirements as described in the regulation and within this topic are otherwise satisfied
This is what I feel I have been driving at!! Thanks @pacmanx1
I'm positive this was ratable then based on that old C&P. If nothing else, it should have been a NSC disability that I could have appealed back then.
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20 minutes ago, brokensoldier244th said:
Yeah the informal claims part changed. They used to take itf on the back of a napkin and stuff. Now it has its own form. Much easier to find in the data base to check for during processing because it’s clearly labeled rather that being named “miscellaneous correspondence “ by the upload system.
This makes sense. I guess once I get my CFile, I just need to see if they fully adjudicate it (final decision) or if it just got forgotten.
Then i can see what my next step might be
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1 hour ago, brokensoldier244th said:
The rule still stands- if a rater comes across something in a C and P or the evidence that points to the possibility of another condition, they can infer and add it to a claim. Then it usually gets kicked back to us (VSRs) to schedule an exam for it, or go on a data mining exposition to try to find more incidents of it in the records on hand. The requirement for a specific form only is for Supplemental claims asking for a re-review, or a full on appeal, i.e. you can't file a new claim based on a previously denied condition on a -526ez. It will get kicked back to you, pending, and processed as a review or appeal once we get the 0995 or 0996- if you ever send it in. That part we can't initiate for you, even the raters can't push an appeal in your name for you- you have to ask for one.
Understood. Ill have to go back and look at the point made in the article i read regarding how they did things prior to 2015. Its more to do with the follow thru itself rather than the initiation or appeal. It had something to do with the way formal and informal claims were being done at that time. Thank you for the clarification, I don’t want to inadvertently give bad info!
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9 hours ago, brokensoldier244th said:
Good point. I sometimes forget about those
It is a good point!
Once i get my C file, things will make sense for me.
But from my reading, prior to 2015, the VA did sometimes initiate a claim based on record or an indicator in another exam (at that time considered an informal claim). Sometimes they did not follow up with it properly which has been coming back to bite them in terms of EED.
Since 2015 they've required the Veteran or rep to initiate the claim formally (submitting the fully developed claim) or informally (filing an ITF). Prior to 2015, this wasn't the case. So it should be interesting to say the least.
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30 minutes ago, pacmanx1 said:
I think the form that you may be searching for in your C-File would be a VA form 119 REPORT OF CONTACT. It is when a veteran and or his representative contacts VA. If you had a representative he/she could have actually filed a claim.
I did not have a rep then. Only recently. I dont recall getting notified of something but its been some time and I could have just as easily forgot that. Im just waiting on my cfile
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18 hours ago, broncovet said:
This is why I suggest you get your effective date appeal to the Bva AS QUICKLY AS POSSIBLE. HLR or SCL is useless, its just another senior rater from your VARO.
This portions you posted on effective dates, citing your source, is excellent. It should be posted again, with a new post where many Vets can see it when appealing their effictive date.
@broncovet Doesn't HLR usually go to the National queue for the next available person? I could be mixing up things lol.
My attorney initiated my HLR. Still don't know why. They aren't great at communicating their actions. I just follow along on VA.gov lol. However, theoretically, an HLR SHOULD be able to identify that EED issue and correct it.I did point to it in my MH claim narrative that I won recently. Perhaps this is something that is slipping thru HLR levels and perhaps needs to be addressed to include issues like these. Anything else, the BVA can deal with.
I'm not looking forward to submitting this to the BVA LOL but, fight the good fight. I am just waiting for this HLR to wrap up. I may need to dump my attorney after my current claim I hired them for is done. I will attempt to explain my EED situation to them in writing and spell it out for them and see if they are interested, but the paralegal seemed clueless on what I was getting at anyway. Which is OK, I don't mind keeping that 20% myself..
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9 minutes ago, brokensoldier244th said:
Raters can infer things from claims- it also could have shown up related to another claim and since the two systems were related (hypothetically) then it got rated administratively based on the evidence of record.
I feel you could be correct here. I cannot fully confirm that the VA failed to adjudicate it without my CFile. But still, I feel I should have been notified. Not to mention, it was a very poor opinion given at the end. Ill need my CFile to see whats what.
Biggest reason i feel it wasn't adjudicated is because nothing was ever listed under disabilities even though there was a diagnosis. I couldnt even appeal it if i had wanted to
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On 9/28/2020 at 2:54 AM, Foxhound6 said:
You or your representative did not get a copy of an adjudicatory document in the prior claim. See 38 CFR 5.125(d)
If i had to make the best argument I could for EED on this, I feel like this is my situation. The C&P from 2013 was never adjudicated, I was never notified of any adjudication, which could indicate that it would be an “open and pending” claim and EED should reflect that.
STILL waiting on my CFile..10 months and counting. Already reached out to my state Senator for help on that.
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6 hours ago, broncovet said:
Excellent post, and Thank you foxhound! I have tried to explain this, but you did it better than I did:
This is why I suggest you get your effective date appeal to the Bva AS QUICKLY AS POSSIBLE. HLR or SCL is useless, its just another senior rater from your VARO.
This portions you posted on effective dates, citing your source, is excellent. It should be posted again, with a new post where many Vets can see it when appealing their effictive date.
Thanks! I knew I had been onto something but i too was having a very tough time explaining it to everyone. Even the paralegal helping with my case for my attorney had no clue what i was trying to say. All she could muster up was “uhh, 2013 is going to be too far back to do anything”. Thats when I knew I may be on my own on this or have to find much better attorney firm.
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6 hours ago, pacmanx1 said:
I think what you are looking for is:
In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits. The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.
Yes, this is a fine example as well Pac! Thanks!
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On 9/23/2020 at 11:59 AM, brokensoldier244th said:
Maybe, I don't know. Since I don't rate Im not really privy to the subtleties of interpreting the M21 when it comes to ratings activity.
After doing more eye ball drying searches over google, I found an interesting article by the Veterans Law Blog. It would seem that even normal raters do not have the ability or training to go back and even attempt to give an EED anyway.
It also touched on an argument example that sounded a little like my situation, Ill quote it here and link article at the end.
QuoteEarlier Effective Date Argument #2
Next, you are going to want to see if there are any previous claims that are open and pending.
You have a prior claim for the same condition, or that reasonably encompassed the condition you just won, and it was never finally adjudicated by the VA, then it is still open and pending.
There are many ways that a claim could still be “open and pending”. Here are 2 of the most common scenarios
- You or your representative did not get a copy of an adjudicatory document in the prior claim. See 38 CFR 5.125(d)
- You filed evidence or argument relating to the reason for the denial within one year of the VA Ratings Decision that the VA says you did not appeal. See 38 CFR 3.156(a)
(This almost sounds like my issue here. They initiated a claim, sent me to the C&P, then did nothing with it. I feel it could be still "Open and Pending" (not able to appeal) which I assume could be what you meant when you said they should have canceled it?)
Example: You just won service connection of your PTSD in 2017. In reviewing your C-File, you find an old claim for service connection of your PTSD that you filed in 1998. The VA issued a decision denying the claim, but when you look at the decision, it was not sent to your VSO or lawyer (or to an address that was not your address of record in the file at the time). Because the VA failed to provide notice, that claim is open and pending, and your 2015 PTSD claim’s effective date could be the 1998 claim date that is still open and pending.
Example: You just won service connection of your PTSD in 2017. In reviewing your C-File, you find an old claim for service connection of your PTSD that you filed in 1998. The VA issued a decision denying the claim because there was no evidence of a current diagnosis. You received the decision, but in looking through your C-File, you see that you sent in a lot of civilian medical records for treatment of PTSD in a local hospital shortly after you separated from military service. Because the VA never addressed this evidence in a VA Rating decision, your claim for PTSD was open and pending since 1998 and would serve as the effective date for the 2017 grant of service connection.
Earlier Effective Date Argument #3
So you could not find any open and pending claims for service connection using the regulations. Now what you want to do is look for old claims that reasonably encompassed the condition that you just won service connection for, and see if you can make an argument that your current claim was reasonably encompassed in the prior claim.
This is a tricky argument…mostly because the VA itself doesn’t understand it. The VA thinks that you cannot file a claim for benefits without a claim form that specifically mentions a particular condition. Time and again, the courts have told them that they are wrong: the courts have said that the VA should liberally construe the record to determine if additional conditions were raised in a prior claim even though they weren’t specifically mentioned on the VA Claims form.
Now, there is “some” merit to the VA’s arguments after March 2015 – after that date, you need an informal or formal claim form to be filed to demonstrate intent to file a claim. Prior to that date, though, this is not the case. (My C&P, or "claim", was in 2013)
Now, if you have to “reach” to make the argument, you are not going to win, in all likelihood. The courts have also been very clear that the VA shouldn’t have to go on a fishing expedition to discern every possible claim that could have been possibly raised in a claim for a separate and distinct condition.
What you are looking for are things like this:
- medical records in an original claim for Condition A that show that Condition B was caused by or related to or aggravated by Condition A.
- claims related documents in a claim for Condition A that show that the claim was actually for a body system or a general illness or ailment and not a specific diagnosis
- claims that describe symptoms or impact on body systems, that are subsequently diagnosed in the course of developing the claim.
More on this later….we’ll get together a whole post on what it takes to prove that an earlier claim “reasonably encompassed” a later condition for effective date purposes.
So, in theory, if I do have an argument here....the initial rater wouldn't have been able to do anything with it and probably had no knowledge of that type of issue. However, it would seem a HLR should pick this argument up fairly easily if this is indeed the case. I'm not at all holding my breath on this, just trying to bounce the thought while waiting on my CFile.
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Just got mine ordered!
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11 minutes ago, brokensoldier244th said:
yeah, its pretty nuts from what I hear. Miy training was wall to wall 8 hrs a day from April to June before I could even start looking at claims, and even then every action I took was reviewed and critiqued for almost another month before I could work on my own, and then it was still another 3 weeks before I was actually held to standards where my mistakes weren't just fed back to me to fix, but also counted against me. They do try really hard to not just drop you into things but you've seen the M21 (or maybe you haven't- you should, its publicly accessible). There are literally some things in there that contradict themselves depending on how and where you look. Its been a multi year project trying to clean that thing up, and its still ongoing, plus every time something gets changed ...........*smh*
Thanks for the perspective! It sounds intense but also "typical" of a fed agency LOL. I will have to look up the M21. I have a general interesting in law (obviously why my degree was in Crim J). That interest is what has gotten me to get the knowledge I do have now. I will say, the curve with leaning claims process is a sharp one!
I also need to look into CFR...the other half lol. Specifically, which may pertain to this question of EED I have. I'll feel less overwhelmed once my pending claim is complete, have more focus to give to research.
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5 minutes ago, brokensoldier244th said:
Maybe, I don't know. Since I don't rate Im not really privy to the subtleties of interpreting the M21 when it comes to ratings activity. For good or ill, those guys/girls go to class 8 hours a day for like 6 months just for that job, and thats after having been a VSR for some years because gs7-9 dont do ratings. Thats gs10 and above and usually a Masters degree in something or another. Im almost there (3 months) education wise, but I have awhile to go before I can even think about doing their job- and I don't know if I want to. I like being a relatively low cog.
Lol I get ya. I appreciate your insight none the less. I may have to just give it a try later on once my HLR on the topic is done and I have been able to fully review my C-File.
Good luck with your further edu! I can understand wanting to stay where you are. I can imagine that job of a rater can be stressful. But, does explain why there are so many errors on claims at times. Seems like pretty intense training
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6 hours ago, brokensoldier244th said:
That should probably be canceled. Unless it’s an RFE but having one a year out is unusual-not unheard of, but unusual. It’s likely that you were scheduled because somebody didn’t document the claim properly before you and scheduled it despite you already having decision. Or you filled a paper claim and electronic claim for the same thing and it wasn’t caught so it was processed as its own claim.
it also could be inferred by a rater after the fact. I see that sometimes, too, to correct an error where something in the contention wasn’t addressed because the vsr didn’t order the exam and attach the documentation correctly.
@brokensoldier244th My guess would be that I was referred by the examiner from my Knee C&P, as in that knee C&P it does list that I had an existing diagnosis for a "Mental Health Disorder". Is this something that could be usable as evidence of an earlier EED for my recent MH award given that they subsequently granted me secondary SC for my mental health just recently, based on virtually the same evidence?
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8 hours ago, pacmanx1 said:
IMHO, before you begin to think about an EED, make sure you review your C-file. Pay close attention to all the documents prior to the date of your original C & P exam and any contact that you had with VA and the VAMC. It possible, now don't quote me, but it is possible that a claim could have been filed on your behalf by a VAMC doctor or by you contacting the VA Regional Office. Only time will tell.
I requested it back in January of this year, still "gathering evidence". My C-File must be huge for two claims! LOL. I just returned an authorization form from my state Senators office so they could maybe expedite its processing. I do need it.
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2 minutes ago, GBArmy said:
Foxhound6 When the VA does a C&P, they are supposed to tell you the purpose of the exam. Sometimes they don't. Happened to me as well. I thought it was a routine check on my heart condition but it was for a C&P and didn't tell me. If you said something while a claim was open regarding a MH condition, the note in the file was caught and it generated the exam. Not a bad thing, but you should have been notified. If the exam results in a favorable finding for a disability for you, (sometimes) the VA will give you a rating for it. But sometimes you may have to submit a claim for it using the finding as evidence. I'm sure their M21-1 manual provides enough wiggle room that the VA can get by doing this even though it sounds un-profesional at the very least to the veteran. Wait and see what your decision letter says and go from there.
That's the thing. I was recently awarded on a claim filed in NOV 2019. For the exact same issues as that exam shows and with, I believe, the same evidence.
When I filed that 2019 claim, I still had no idea that previous exam even existed.
Perhaps I have an "EED" argument?? Need to do more research.
I truly need my C-file. Been waiting. Recently reached out to my congresswoman.
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Not sure who might know this, possibly @brokensoldier244th, but would there be any reason for a C&P exam being performed (in my record), without me filing a claim during the time I had the exam? It appears favorable with exception to the examiner making a remark toward the end.
I recall sitting down with someone from mental health during that time at the VA because I indicated my issues with mental health during my (presumptive from exiting active duty) left knee claim that was SC'd.
I just find it odd that, even with diagnosis and favorable findings, it was never listed as a disability or NSC disability. I never even knew it existed until recently
I can redact and post exam if needed. Thanks!
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20 hours ago, Berta said:
If they did not consider it, the rationale for the decision will not mention it at all.
Do you have proof that you told them of the SSDI on the TDIU form?
I asked this question many times here over the past years , with no answer -
Does the VA still send a veteran an authorization form the vet must sign and return, in order to obtain SSA records?
That authorization form, in the past, was part of a veteran's C file and proof that they should have gotten the records.
Berta,
I am not fully sure about that exactly, however, I am going thru SSDI now, based on SC issues. I told the SSA I was going to send in my VA records for them and they told me they would just "pull the information from the VA as they are Federal as well". I may have signed an authorization form during my online application with SSA, but I think I just noted my providers for them. So it is possible that the authorization is build in to each respective agencies application systems now?
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On a side note as well, as SSA and the VA may both be Federal agencies, they do not necessarily "reciprocate" each other's information. They may share some information and weigh it, however, they do not really work together very much. Primary exception being wage reporting.
They're like family members who rarely see each other and when they do, it's just a few pleasantries and it's back to their respective world's.
It's quite amazing to watch how agencies don't utilize each other more efficiently
For example, I am going thru SSDI now as well. The mental health exam required by SSA seemed far less thorough than my C&P exam was for my recent rating with the VA. To me, the SSA exam seemed pretty sub-par compared to the VA. So if I am denied by SSA, I'll be a little suspect of its efficacy of providing a sufficient mental health exam for something important to folks that they seem to go out of their way to deny.
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4 hours ago, Combat eng said:
I haven't worked since 2009 and was awarded SSDI in 2014. When I filed for TDIU I included my award letter from the SSA. There is no mention of SSDI or SSA in the evidence that the VA used to make their decision. I know they had it because I included it in my claims packet. The awards letter states vocational expert opinion and only include my service connected condition as the reason for me being granted SSDI. Should I see this in the evidence the VA used to make their decision?
In the decision you received, yes, there should be a list of evidence that the VA reviewed. I am not sure what they would list something from SSA as but I would think it would be obvious in the list. If it is not listed, I would say they overlooked it.
The next thing you could do is point that out to them. The exact way to do that, I am not fully sure. A Supplemental would require new and relevant evidence. Since this is something you believe they already had, you may need to try HLR?
Someone with more knowledge of an issue like this will surely chime in to shed more light for you soon.
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45 minutes ago, Berta said:
If you do find the 2013 decision, it might help but since it is for a different MH, I do not see that as a CUE.
A disability should be at least at 10% and listed as NSC, in order to support a valid CUE, if the disability subsequently becomes service connected.
I guess a NSC at "0" might be able to be CUED, if it becomes service connected, but I have no idea how that would work. If an NSC has a zero %, and the medical evidence reveals it should be higher, that is the time to appeal the "0".
I dont recall ever seeing that type of CUE.
I will check the BVA site when I have time.
Others will chime in on that.
That is the thing. I did not put in for one in 2013. But a C&P was performed. Nor was I able to appeal anything. It was as if they did a C&P for MH, initiated a claim maybe? But then did nothing with it? So I guess my confusion lies more there?
HLR of a won claim
in VA Disability Claims Research
Posted
So anyone who utilizes an attorney or VSO might be able to chime in here. I am curious as to the benefit or reason you would HLR a claim that was won? Quality assurance (LOL)? Do HLR usually require a contention of something to file it?