Reg's Provide That A Report Of A Va Exam. Will Be Accepted

[lu12]

For benefits if the report relates toa disability which may establish entitlements to compensation benefits. 38 C.R.F. 3.157(a). could it be apply base on de novo basis.

Ex: If you in 2007 on a C&P examination for Depression and both Elbows complaint of cervical and shoulders pain and discomfort could you claim entitlement to s-c for for the last two conditions effective on the 2007 C&P examination even if that examination were not related to them.

Or then can you claim s-c base on a new claim a year after but claimed an effective date for service connection base on the previous C&P that was not related to your new physical conditions?

lu12

[Ricky]

There have been several rulings (court rulings) on this issue. The Va regs and the law require that the communication must identify an intent to apply for benefits and the benefit sought. The federal court rulings have ruled that the medical examination reports does not meet this test.

Now back to the VA. The exsistance of a medical report on a currently non-service connected disability does not consistute a claim for benefits. It is looked as proof of only a claim for medical benefits. So if you discuss a currently non-service connected disability during a medical visit then you will have to provide your intent and benefit sought seperately, therefore the medical record does not establish the effective date.

Now on request for increase of an already service connected disability the VA will accept VA medical or hospital records as and informal claim. I believe that one will still have to apply for the increase (unless it was a C&P exam) but the effective date will be the date of treatment. With private medical reports and hospital records the effective date will be established on the date the records come under control of the VA. This is what I recall from reading from various sources to include CG opinions. Do a little searching and you should stumble upon the rulings.

Keep in mind that during a C&P exam the doc's authority only extends to the disabilities in which you have claimed benefits for. You can bring up any medical condition which will go into your history but the only thing that will be accepted by the rater is the opinions issued by the doc on the conditions for which the C&P was scheduled. Therefore, bottom line is that the answer to your question is no you must submitt a seperate request to establish your effective on the new disabilities.

Hope this helps. Keep in mind that this is a recall from my memory on research on effective dates but it should point you in the right direction.

[Wings]

x

x

x

In a perfect VA world (hehehe), A Medical Examiner could submit a claim to the VARO him/her self - - but they don't, won't and maybe never will! Ricky is right to point out that the right hand VA(MC) and the left hand VA(RO), do not effectively communicate with one another! The veteran is the middle wo/man, who must bridge the communications between members of the same house! ~Wings

The assignment of effective dates of awards is generally

governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. §

3.400 (2005). Unless specifically provided otherwise, the

effective date of an award based on an original claim for

service connection, a claim re-opened after final

disallowance, or a claim for increase "shall be fixed in

accordance with the facts found, but shall not be earlier

than the date of receipt of application therefor." 38

U.S.C.A. § 5110(a) (West 2002). The implementing regulation

clarifies this to mean that the effective date of an

evaluation and an award of compensation based on an original

claim, a claim re-opened 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." 38 C.F.R. §

3.400 (2001).

The effective date of a grant of direct service connection

will be the date following separation from active military

service or the date when entitlement arose, if the claim is

received within one year after the veteran's separation from

active service. Otherwise, the effective date will be the

date of receipt of the claim, or the date when entitlement

arose, whichever is later. See 38 C.F.R. § 3.400(b) (2)

(2005).

A claim that specifically identifies the benefit sought must

be filed in order to obtain such benefit. 38 U.S.C.A. §

5101(a); see also 38 C.F.R. § 3.151(a), and Mitscher v. West,

13 Vet. App. 123, 127 (1999). Both statutes referred to

above (§ 5110 and § 5101) "clearly establish that an

application must be filed." Crawford v. Brown, 5 Vet. App.

33, 35 (1993), citing Wells v. Principi, 3 Vet. App. 307

(1992).

A "claim" is defined in the VA regulations as "a formal or

informal communication in writing requesting a determination

of entitlement, or evidencing a belief in entitlement, to a

benefit." 38 C.F.R. § 3.1(p) (2005). An informal claim is

any communication or action indicating an intent to apply for

one or more VA benefits. 38 C.F.R. § 3.155(a) (2005).

VA must look to all communications from a claimant that may

be interpreted as applications or claims - formal and

informal - for benefits and is required to identify and act

on informal claims for benefits. Servello v. Derwinski, 3

Vet. App. 196, 198 (1992). If VA fails to forward an

application form to the claimant after receipt of an informal

claim, then the date of the informal claim must be accepted

as the date of claim for purposes of determining an effective

date. Servello, 3 Vet. App. at 200.

The date of receipt of a claim is the date on which a claim,

information, or evidence is received by VA. 38 C.F.R. §

3.1® (2005). "Claim" is defined broadly to include a

formal or informal communication in writing requesting a

determination of entitlement or evidencing a belief in

entitlement to a benefit. See 38 C.F.R. § 3.1(p); Brannon v.

West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3

Vet. App. 196, 199 (1992). Any communication indicating

intent to apply for a benefit under the laws administered by

the VA may be considered an informal claim provided it

identifies, but not necessarily with specificity, the benefit

sought. See 38 C.F.R. § 3.155(a) (2005).

The general rule with respect to the effective date for an

award of increased compensation is that the effective date of

an award shall be fixed in accordance with the facts found,

but shall not be earlier than the date of receipt of

application therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38

C.F.R. § 3.400 (2006). An exception to that rule applies

under circumstances where evidence demonstrates a factually

ascertainable increase in disability during the 1-year period

preceding the date of receipt of a claim for increased

compensation. In that situation, the law provides that the

effective date of the award shall be the earliest date as of

which it is ascertainable that an increase in disability had

occurred, if application is received within 1 year from such

date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §

3.400(o)(2) (2006); see VAOPGCPREC 12-98 (Sept. 23, 1998);

see also Harper v. Brown, 10 Vet. App. 125 (1997) (noting

that § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable

only where the increase precedes the claim (provided also

that the claim is received within one year after the

increase) and are not applicable when a claim is filed and

the increase in disability is subsequently ascertainable).

In all other cases, the effective date will be the date of

receipt of claim or date entitlement arose, whichever is

later. 38 C.F.R. § 3.400(o)(1) (2005).

A claim is a formal or informal communication in writing

requesting a determination of entitlement, or evidencing a

belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p),

3.155 (2006). The regulation which governs informal claims,

38 C.F.R. § 3.155, provides as follows: "(a) Any

communication or action, indicating an intent to apply for

one or more benefits under the laws administered by [VA],

from a claimant . . . 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 [the formal claim] will be

considered filed as of the date of receipt of the informal

claim."

Under certain circumstances, examination or hospitalization

reports may be accepted as an informal claim for benefits

under an existing law or for benefits under a liberalizing

law, if the report relates to a disability which may

establish entitlement. 38 C.F.R. § 3.157 (2006).

Specifically, 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 a VA

examination or hospitalization report will be accepted as an

informal claim for increased benefits or an informal claim to

reopen. 38 C.F.R. § 3.157(b)(1). Also, the date of receipt

of evidence from a private physician or layman 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. 38 C.F.R. § 3.157(b)(2). "Date

of receipt" means the date on which a claim, information or

evidence was received in the VA. 38 C.F.R. § 3.1®.

Thus, in fixing an effective date for an award of increased

compensation, VA must make two determinations. It must

determine when a claim for increased compensation was

received, and when a factually ascertainable increase in

disability occurred.

With respect to the first determination, a specific claim in

the form prescribed by the Secretary must be filed in order

for benefits to be paid to any individual under the laws

administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38

C.F.R. § 3.151(a) (2006). Any communication or action

indicating intent to apply for one or more benefits under the

laws administered by VA from a claimant may be considered an

informal claim. 38 C.F.R. § 3.155(a) (2006). When a claim

has been filed which meets the requirements of 38 C.F.R. §

3.151, an informal request for increase or reopening will be

accepted as a claim. 38 C.F.R. § 3.155© (20056.

VA must look to all communications from a claimant that may

be interpreted as applications or claims - formal and

informal - for increased benefits and is requested to

identify and act on informal claims for benefits. See

Servello v. Derwinski, 3 Vet. App. 196 (1992).

[Ricky]

Yahoo, by golly I was right for once!!!!! :) B) B)

[LarryJ]

"A claim is a formal or informal communication in writing

requesting a determination of entitlement, or evidencing a

belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p),

3.155 (2006)."

"A claim that specifically identifies the benefit sought must

be filed in order to obtain such benefit. 38 U.S.C.A. §

5101(a); see also 38 C.F.R. § 3.151(a), and Mitscher v. West,

13 Vet. App. 123, 127 (1999). Both statutes referred to

above (§ 5110 and § 5101) "clearly establish that an

application must be filed." Crawford v. Brown, 5 Vet. App.

33, 35 (1993), citing Wells v. Principi, 3 Vet. App. 307

(1992)."

ya gotta write it down and ya gotta file it and it has to be specific.

[Ricky]

Yes Sir, just like Wings said left don't know what right is doing and like Larry said - you want it you gotta write it down and file it.

If you go and see you VA doc on a SC disability and he says yep its worse the record will never make it to the RO unless you send it. If you send it then you ED is protected.

[lu12]

If your cervical and shoulder pain and discomfort was DOCUMENTED on the 2007 C&P, then yes, you can raise the issue of Informal Claim for the effective date of award of service connection. You MUST follow an Informal Claim with a Formal Claim withing one year, I believe! Look up the CFRegs. ~Wings

Ok Wings, I started this with or as an example. With my case in 1996 I had two C&P Examinations for both LB & Knee increase evaluation on these Examinations I did complaint of cervical, anxiety and headaches when ask by the examiner other (S&S) on part A/B of the medical evaluation report, and like,

Rick wrote:

-Keep in mind that during a C&P exam the doc's authority only extends to the disabilities in which you have claimed benefits for. You can bring up any medical condition which will go into your history but the only thing that will be accepted by the rater is the opinions issued by the doc on the conditions for which the C&P was scheduled. Therefore, bottom line is that the answer to your question is no you must submitt a seperate request to establish your effective on the new disabilities.

Now back with my case. I filed for my cervical disorders same year 1996, dont know how but my claim got lost, did got a coy and with that copy went back in 1997 again VARO did nothing. In 1998 with a RSO re-filed my cervical issue along with three other issues two have been resolved already. keep in mind that I have prove of both 96-97 claims...

My point or question here is? Since the VARO Finlay took action in 1998 in regards to my cervical spine issue can I request that the effective date for my cervical claim issue can go back to 1996 even though they Finlay handled the claim two years later 1998.

And the same for the anxiety disorder, but for this issue the claim date was 1998 two years before the 1996 C&P first anxiety complaint report.

Thanks Wings, Rick, Larry, cg

lu12

Edited January 17, 2008 by lu12