Rougetet

Draw808 - Here is a more radical answer to your question about effective dates and diagnosis, but you should consider what it says and then determine if you want to provide this type of argument in a NOD (if within the one year denial period or in an argument if your SOC/Appeal is still ongoing) - especially notice the bolded part below. If you disagree with what I say below, treat it as my opinion and move on or place your own contradicting opinion here if you desire; I will not debate this opinion since I want to avoid the possibility of a real "flame war" in this thread and we should just agree to disagree in that case: I believe that rating adjudicators at the VAROs have often misconstrued what both the law (Title 38) and their regulation (38 CFR) indicate for determining an effective date for a disability compensation claim. The law, Title 38 § 5110(a) states that effective dates should be: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” VA’s implementing guidelines for the law excerpt provided above, 38 CFR § 3.400, states that effective dates should be: “Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” VA guidelines have chosen to have the words “date entitlement arose” to be the same as the law’s words “fixed in accordance with the facts found”. VA guidelines CAN NOT arbitrarily change the law enacted by Congress and therefore each rater evaluation done for determining the date entitlement arose must essentially meet the criteria of being “fixed in accordance with the facts found”. In disability compensation claims in order to find the date entitlement arose AND the date fixed in accordance with the facts found, it is necessary to determine the date of onset of the disability in order to meet the spirit and intent of both the law and regulation. This date of onset IS the date true entitlement arose (regardless of whether a claim is ever filed for this disability). For ALL disability compensation claims that have been determined to be directly service-connected, that date of onset happened sometime during the veteran’s service. Since a claim for disability compensation through the VA can not be completed prior to a veteran’s discharge, separation or retirement, that essentially makes the date of entitlement the day after a veteran’s discharge, separation or retirement in ALL claims which are determined to be directly service-connected. Therefore, for those claims determined to be directly service-connected, the effective date for award MUST be the date (or up to one year earlier under certain subparagraphs of 38 CFR § 3.400) the VA receives the claim (if claim initially filed AFTER a veteran’s discharge, separation or retirement – some claims are initiated immediately prior to exiting military service for consideration and those claims effective date becomes the day after discharge, separation or retirement). Although the effective date of award for direct service-connection claims must initially be the date VA receives the claim (or up to one year earlier under certain subparagraphs of 38 CFR § 3.400), there are certain cases where it becomes important to establish a staged rating during the claim because the symptomology indicates different levels of disability corresponding to different rating levels in VA’s Schedule of Rating Disabilities (38 CFR, Part IV) that have occurred from entitlement date to claim decision date. In all those cases it is important to determine the date of onset where the disability has worsened in order to establish this staged rating. For claims which are determined to be secondarily related to an existing service-connected disability, again it is important to determine the date of secondary related disability onset to determine the date of entitlement for this secondarily related disability. The entitlement date in this case will often be related to the first evidence of a symptomology shown in medical/administrative records or layman statements/affidavits. Again, the effective date will most likely be the date VA receives the claim provided that any symptomology occurred prior to this claim receipt date. I have noticed or heard from many veterans that VA rating adjudicators often use the date of diagnosis of a disability to determine effective dates for awards based upon that being the date of entitlement. Although a diagnosis is often necessary to confirm the existence of a disability, it is not the date of onset of a disability which would be needed to determine the true date of entitlement; this diagnosis almost always occurs long after the disability’s onset. To think otherwise would mean that something happened within the exam that caused the disability – prior to the exam diagnosis there was no disability with this way of thinking. Besides being ludicrous, this may open up the VA to potential additional disabilities incurred in an “1151 claim” under Title 38 U.S.C. section 1151 since they evidently did something during the exam to cause the disability. Consideration should also be given as to how this needs to be applied to claims that are other than standard disability compensation claims (e.g. presumptive claims, Nehmer claims, pension et al.). As a minimum, it should have applicability also to claims for Total Disability due to Individual Employability (TDIU), 38 CFR § 4.16, since date of unemployability onset needs to be determined there also as date of entitlement, and the date of exam that indicates there is unemployability should not be used as the sole determinant for date of entitlement.

Yes, I am the original author

Sorry this is so long but reading "THE BASICS" section is most important. It is taken from an email I sent to Veterans I work with. THE BASICS Title 38 (aka 38 USC) is the body of most of the laws pertaining to the charter of the VA that have been written and approved by Congress. Usually these are general statements about what is to be done in the VA and are not usually necessary to review by veterans except under some unusual circumstances. Title 38 can be reviewed though at this link if you are curious. 38 CFR (CFR stands for Code of Federal Regulations) are the implementing instructions for the laws Congress passed in Title 38. They are usually much more detailed than the law itself and are written by the VA (you can have input to these regulations though - see section below). It is highly recommended that all veterans become quite familiar with 38 CFR (especially Part 4) so they can ensure that they are receiving all the benefits due them. 38 CFR can be reviewed at this link. In order to prevail (win) any VA compensation claim, there are three things you must accomplish. They are: 1) You must have evidence of an illness or injury that started, happened or got worse while in military service 2) You must have medical evidence of a current disability (impaired function you have today - medical doctor/medical professional must indicate this through a diagnosis and/or medical notes - sometimes they will also indicate a prognosis - what is the possibility it will get better, but a prognosis is not necessary for this step, but can become important for other VA programs) 3) You must have medical evidence linking 1 and 2 (called a NEXUS - has to be made by a doctor) Items 1-3 above are requirements to establish what is called SERVICE CONNECTION and without them the VA will not provide any disability compensation. Once SERVICE CONNECTION is established to VA's satisfaction, the VA will further review your disability claim using a VA rater to determine the amount of disability compensation, if any, that should be paid (a percentage of disability that relies upon the medical evidence that is determined from Item 2 above, and other medical evidence in your records, as compared to 38 Code of Federal Regulations [CFR], Part IV - aka Schedule for Rating Disabilities and the VA rater's operating procedures). You can look at this Part IV of 38 CFR at this link to get an idea of what approximate percentage of disability may be appropriate in your case. To initiate a claim for VA compensation, you actually don't have to provide anything such as 1-3 above to start it (but should if you want it to go faster), you only need to let the VA know that you believe that all three things above exist and you want the VA to start the compensation discovery process. VA Form 21-4138 (link) is the normal way you do that. This form when filled out should be mailed (along with any other documents to support your claim) to the VA Waco Regional Office and best if you send it Return Receipt Requested through USPS (Address: Department of Veteran Affairs, One Veterans Plaza, 701 Clay Avenue, Waco, TX 76799). The previous sentence assumes your VA Regional Office is Waco, TX. If not, find your VA Regional Office at this link. Once SERVICE CONNECTION has been established, the VA will pay disability compensation owed you STARTING WITH THE DATE THEY RECEIVED YOUR CLAIM FORWARD, and it certain rare cases, up to one year earlier than claim receipt date if your claim meets certain criteria, so it is important to get this form to Waco as early as practicable to establish a payment start date. That is one reason you should send your claim Return Receipt Requested so you can later prove the date they received it if you need to. Also, since the VA typically takes many months to finish up a claim and start sending you a disability compensation check, this will often result in a sizeable backpay check when you get your first disability compensation payment. Typically, a veteran will only have Item 2 above when they start the research on their claim and must do some "footwork" to get Items 1 & 3 (you can actually not do the footwork and rely on VA to do it for you but don't expect them to do as good a job as you would - this is often the cause of a claim failing - trusting VA too much that they will get it right). You may also wish to obtain the services of a Veteran Service Officer (VSO) to assist you in getting the appropriate documentation together and submitting your claim. VSO services are free to veterans. A list of free County Veteran Service Officers by state can be found at this link. Additionally, most veteran service organizations such as the VFW, DAV, MOPH, American Legion, etc. have free VSOs available to assist you with your claim and you don't have to even be a member of the service organization to use them. Look up their availability by googling the organization name to find their website. I actually recommend that you do most of the footwork on your own prior to enlisting the service of a VSO to help further your education on the VA process. Once you have done all you can do, then seek out a VSO you feel you can trust to help you package the claim as well as check for completeness of this claim to be sent to the VA Regional Office. Remember, no one cares about your claim as much as you do. Often, to get the documents required for Item 1 above when you are doing this footwork, you will need a copy of your in-service medical records if you don't already have a copy of them. The location where your in-service medical records are archived varies with the service component and the date you were retired or discharged from the service. To locate where your records are actually kept you should call 1-800-827-1000 and ask where your service MEDICAL records are kept and what is the procedure for requesting a full copy of such records. Once you get them, review them to determine if any illness or injury is shown in them and you are now having problems (some impaired function) that started or worsened while you were in the service. Often overlooked by veterans are hearing tests, entrance and exit SF Forms 88 and 93 (shows your health at the start of your service and end of your service), dental records. To establish Item 3 above (establish or not a NEXUS) requires a medical doctor note/writing to relate 1-2 above using the words (or substantially similar words linking Item 2 to Item 1): "... is due to ..." (good for you) "... is likely due to ..." (good for you) "... is likely as not due to ..." (good for you) "... is likely not due to ..." (bad for you) "... is not due to ..." (bad for you) This does NOT have to be a VA doctor that establishes this NEXUS. Any medical doctor can provide the appropriate language for a NEXUS, HOWEVER, if done by any doctor other than a VA Compensation and Pension (C&P) examiner, you should make sure they provide medical reasons for this NEXUS or the VA may say the evidence does not support their NEXUS finding. For certain disability conditions, Congress has determined that those specific conditions result in a reduced quality of life (QoL). Congress has provided a law covering those conditions (with increased disability compensation) and those condition's compensation is covered under what is called Special Monthly Compensation or SMC. For a list of those conditions see this link to the law (Title 38 § 1114). The current SMC compensation table can be found here (NOTE: the dollars shown are NOT additive to your current disability compensation, the table reflects your TOTAL disability compensation). The letter awards "k" through "s" are references to the appropriate paragraphs in Title 38 § 1114. The "q" rate has not been awarded since 1968 and was repealed for use by public law 90-493. There are also some limiting restrictions with awarding the "r" rate (r.1 or r.2) as well as some conditions known as 1/2 rates that "bump up" compensation between two rate levels so best to consult the Title 38 § 1114 law link to see when and how such rates may apply. Besides the SMC letter awards, QoL compensation issues are addressed by the Vocational Rehabilitation and Education (VR&E) provisions of Title 38, Chapter 31 through subsistence allowances. There are also additional non-compensation QoL BENEFITS available through Chapter 31 such as wheelchairs, prosthetic appliances, service dogs, PDA's, computers, etc. (primarily through the VR&E's Independent Living Program commonly referred to as ILP). One other way QoL benefits are provided is through specially adapted housing grants through 38 CFR, Part 36, Subpart C. Still another QoL benefit provided by the VA is financial assistance in purchasing an automobile with adaptive equipment OR adaptive equipment for the veteran's current automobile through 38 CFR § 3.808. Some veterans consider that the Clothing Allowance under 38 CFR § 3.810 should also be considered as a QoL compensation benefit, but I think of it more as a "wear and tear" add-on benefit only required when other benefits have been provided by VA such as prosthetic appliances - not really a "real" QoL benefit then in that regard but only relationally related to QoL indirectly. HOW 38 CFR GETS CHANGED AND HOW YOU CAN PROVIDE INPUT FOR THOSE CHANGES All proposed 38 CFR changes must go through the Federal governmental process of posting a "Proposed Rule Change" on the daily published Federal Register (FR) and allowing time for comments to be received and evaluated by the VA (and also the VA checking the proposed changes against other administrative regulations/laws for consistency) BEFORE a "Final Rule" by VA is published in the FR which results in the changes being published in 38 CFR (pretty much the same governmental process typical for all changes to any CFRs, not just the 38 CFR VA one). This will typically take anywhere from 3 months to ? from the start of the publication date of the "Proposed Rule Change" in order to implement a CFR change. Until the "Final Rule" appears in the FR which outlines backdating requirements as well as implementation requirements, etc., VA will typically not process claims with consideration of any new ruling change announcements that may appear in the press. You can keep yourself apprised of upcoming changes to 38 CFR by periodically checking the FR for new changes at https://www.federalregist...erans-affairs-department. When a proposed rule is posted in the FR, the Administrative Procedures Act REQUIRES that the proposing agency allow time (usually 30-60 days) for the public to provide comments. Those comments must then be responded to in writing (whether accepted or rejected and why) by the proposing agency when it publishes its final rule in the FR. This is a great chance to get your voice heard by the VA before they make a change to the 38 CFR. OTHER IMPORTANT LINKS/FACTS TO KNOW 38 USC Chapter 35 – Survivor and Dependents Educational Assistance Provides information on the law for compensation to allow your dependents to attend higher education (aka DEA). Veteran typically must be Permanently and Totally Disabled (VA status), died from service connected conditions or have been a POW for their dependents to receive this benefit. 38 USC § 1781 - Medical care for survivors and dependents of certain veterans Provides information on the law for reimbursement/no cost care to allow your dependents to obtain medical care (aka ChampVA). Veteran typically must be Permanently and Totally Disabled (VA status) or died from service connected conditions for their dependents to receive this benefit. Presumptive Service Connection: For certain illnesses, the VA has relaxed the requirement to prove service-connection by use of a NEXUS linking a service medical record diagnosis with a current disability. For these disability conditions a NEXUS is assumed. Typically, for these conditions currently diagnosed, the veteran will need to show their participation in a particular theatre of operations during a particular time period, OR, in some cases, need only show a current diagnosis of the disability condition (such as ALS). Presumptive service-connection is defined in more detail in 38 CFR § 3.307 and the illnesses that are presumptive is covered in 38 CFR § 3.309. There is a requirement for the veteran to show 90 days or more active service to establish presumptive service-connection. VA Pension: In cases where you may not have a lot of service-connected disabilities that provide a high level of disability compensation, a veteran may be eligible for a VA pension. Check out the link to see if this applies to you. An often overlooked fact is that many veterans over the age of 65 with current low or no income who served during a period of war and have no or minimal service-connected disabilities are often eligible for a VA pension. Also VA pensioners should be aware of the possibility of obtaining aid and attendance benefits. Search Board of Veteran Appeals (BVA) Decisions All BVA decisions since 1992 are available to be read on the Internet. A word of caution however. BVA decisions are not precedential according to 38 CFR § 20.1303. They can be quite useful though in determining what evidence generally will be accepted by the BVA and is a treasure trove of citations of Court of Appeals for Veteran Claims (CAVC) that are precedential since they are actually law. Court of Appeals for Veteran Claims This link will allow you to review CAVC decisions (which are law) and may help you in your discussions with the VA when they contest your claim. Use the Orders and Opinions sidebar on the left for this link. How do VA raters determine the percentage of a disability: In addition to using all the medical documentation provided to them, as well as 38 CFR, Part 4 as a guide, raters have operating procedures for determining evidence evaluation covered in M21-1MR as well as Fast Letters and other documents provided them by their leadership that provide them a framework for evaluation of a disability in a claim. The link provided for M21-1MR takes you to Part I, there are 10 other Parts and the links to them are at the top of the page (Part II, Part III, etc.). COMMON MYTHS/URBAN LEGENDS PERPETUATED BY VETERANS The VA rater has a goal to deny most claims to save the government money. Individually, almost all VA raters are just trying to do their job and have a genuine desire to help veterans get what they deserve in accordance with the law. The system and procedures they are provided to do their job though are counterproductive in many cases to allow that job to be completed. Additionally, the way VA raters are evaluated appears to establish a bias that makes it easier to deny claims then grant them. I call this myth the "shoot the messenger syndrome". You would be much better off trying to change the system itself which you can start doing by referring to the "HOW 38 CFR GETS CHANGED AND HOW YOU CAN PROVIDE INPUT FOR THOSE CHANGES" section above. P&T stands for Permanent and Total Ratings. The abbreviation/mnemonic/term P&T is not found anywhere in Title 38 or 38 CFR and is a term created by veterans to indicate getting a status from VA that allows them to get DEA, ChampVA and other benefits. The VA does use the words “Permanent and Total Disability” and “Total Disability, Permanent in nature” within Title 38 and 38 CFR to describe eligibility for those benefits that veterans associate with the term P&T. There is a big difference between a Total Rating and a Total Disability. A Total Rating refers to a disability compensation level of 100%; a Total Disability refers to a disability or combination of disabilities so severe that it is impossible for the average person having it/them to follow a substantially gainful occupation (i.e. they meet the VA’s definition of unemployability). So P&T really stands for Permanent and Total Disability and can actually be determined by a doctor at any rating level for the veteran (it is a medical determination, not an administrative determination by the VA rater). 38 CFR does sometimes confuse the issue by using the term Total Disability Ratings when they are referring to providing a Total Rating just because the veteran has a Total Disability but critical reading of the paragraph where Total Disability Ratings is used, clears up this ambiguity. After being given a P&T status, a veteran can work as much as they want. Since P&T refers in part to a Total Disability, it restricts a veteran’s ability to earn more than the VA’s guidelines for a substantially gainful occupation (currently about $10,788 annually for a veteran over age 65, about $1,000 more for under age 65 – determined by Census Bureau Poverty level for one person) in order to keep their P&T status. A 100% rating for a mental disability prevents a veteran from working. Ratings of any kind, mental or physical, have nothing whatsoever to do with the VA restricting or barring a veteran from working to keep that rating. The only thing that causes the VA to restrict or bar employment for receiving certain benefits is the veteran having a Total Disability (exceptions: there are certain and limited VA VR&E programs that by their very nature require or infer current unemployment for participation as defined by the VA regardless of any total disability determination made or not made, and there is a potential “gray area” exception in some very limited and income-defined cases where a P&T veteran is in a VA nursing home). This is supported by Title 38, 38 CFR, the Federal Register, BVA and CAVC decisions. Whether you should work though with a 100% VA mental rating is a separate and individual (specific to you alone) medical issue between you and your medical treating team outside of current VA law and regulation. This issue is discussed in more detail at the VBN post at this link. There is nothing you can do if you find errors in your medical records or C&P exams. 38 CFR § 1.579 - Amendment of Records allows a veteran to correct VA records (including C&P records) that are not accurate, relevant, timely or complete. There are certain defined procedures to accomplish this so read the requirements at the link. There is no time limit to initiate a correction of record request. You can NOT use this to dispute decisions on your claim, only correct administrative records. If you need to dispute the decision on your claim, use the Notification of Dispute (NOD) process. THE FINAL WORD There are many more potential pitfalls that you can run into when dealing with the VA, more than I can cover here. I do have some more Internet posts available where I cover such issues as "Getting Easier VA Approvals", "Doing Claim Research", "Why ICD-9 codes in your medical record are important", and many other issues. You can view these posts by going to the link at http://rougetet.vets.yuku.com/ and checking out the links in the right sidebar. I hope this information is helpful.

On June 8, 2012, the VA published in the Federal Register a notice of a future advisory meeting to take place June 25-26 in Washington (see the notice at link). This meeting is being arranged to discuss "... maintenance and periodic readjustment of the VA Schedule for Rating Disabilities ...". For veterans who wish to influence changes to Part 4, 38 CFR (aka Schedule of Rating Disabilities used by VA to provide example criteria of disability severity and rating percentage levels) OR have input into the parts that should be changed first, they can provide their comments by email prior to the meeting to Robert.Watkins2@va.gov. Read the notice at the link above to educate yourself on the meeting objectives so you can compose a successful email to get your point across. Good Luck!

Well there are some certain very limited exceptions where you could have a less than 100% rating (schedular or TDIU based) and your dependants could still qualify for Chapter 35 DEA benefits. They are extremely rare though and I assume you would have a devil of a time getting them past the raters - the ones that come to mind (not an exhaustive list): 1) You have a disability or combination of disabilities that does not allow you to be TDIU eligible (no rating for a single disability of at least 40% OR your single/total disabilities do not meet the 60% or 70% gates for TDIU) BUT the overall disability picture precludes employment and some or all are permanent in nature (permanence important to be assigned to an SC disability that does preclude employment). An example could be that you have epilepsy rated at SC 20% permanent in nature and your state will not issue or renew a driver's license because of it and you live in a rural area without public transportation - in essence you have no way to get to a job site and you are really virtually unemployable because of this 20% SC disability. Not saying this example would be accepted - it is just a hypothetical example. 2) You have a disability SC and permanent in nature and you have other NSC disabilities that make you eligible for pension. You could be designated by the VA as totally disabled because of these combinations of disabilities under Pension Law and thus maybe establish eligibility for Chapter 35 DEA benefits for your dependants because of the way Chapter 35 DEA is written. 3) You have a single SC disability, permanent in nature, that does not have a rating level in the Schedule of Rating disabilities (38 CFR, part 4) of 60% or higher for that disability. If that single disability can be shown to preclude employment (or by its nature precludes employment), then you would still meet the Chapter 35 DEA requirements PROVIDED the VA ends up classifying or describing that single disability as a "total disability" in some correspondence to you. 4) You meet one of the "period term exceptions" in Chapter 35 DEA (i.e. MIA over 90 days, POW over 90 days, etc.) OR having a "convalescence" temporary rating when your dependant applies (you would need to do further research on that one but my preliminary research indicates it is a possibility). Many of these would probably need to be forwarded to the VA Director of Compensation Services for resolution, BUT your question had to do with is it possible to get P&T without having a 100% rating and thus allow Chapter 35 DEA eligibility for your dependants. In limited cases the answer is Yes.