Hospitalization-- An Informal Claim?

[Guest morgan]

Somewhere I think I read that a veteran's hospitalization should be considered an informal claim. Has anyone else read that? If so, would the hospitalization have to be in a VA hospital?

[carlie]

Berta,

I feel they used only the (b) part.

Here's the rest of what was VA wrote to me.

The evidence, including your recently completed Veterans Administration examination, does not entitle you to service connection for the following disabilities; hearing loss, otitis media, lumps on neck, back and neck condition, headaches and dizziness, and residuals of concussion. Although

records show you were treated for these disabilities during your military service, these disabilities were not found on the last examination. If any of these disabilities recur, you may submit medical evidence to show the recurrence.

It is regrettable a more favorable response is not possible.

Sincerely yours,

M.R. Woodall

Adjudication Officer

[carlie]

Bump to Berta,

carlie

[broncovet]

I agree that these regulations demonstrate that the Veteran would be eligible for an EED on his claim if he could show that the doc brought this condition (claim) up at a hospitilization/VA doc visit.

To me, this is just another demonstration of how far the reality is that the VARO really has its own agenda of maintaining the employees jobs, and they only appear to be helping Veterans if they think someone important is watching.

From a practical standpoint, not a legal one, the VA is only gonna process evidence on the claimed condition, they simply are not going to look for other benefits that the Veteran may be eligible for, even tho regulations require it, as shown below:

"the VA must give a sympathetic reading to a veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations." Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Since Moody, VA's General Counsel has issued binding guidance":

So, my advice is to apply for the claim, win it, then appeal for an earlier effective date, based on your hospital stay. It is very frustrating to do this the "long way", (instead of asking for an effective date of the hospitilazation from the get go).

The VA interprets its own regulations anyway it wants. So, they have interpreted Moody to mean, "Ignore any claim except the one the Veteran asks for, then scream like mad if he wants to consider it an informal claim for an earlier date"...you know..the 3 D's.

[carlie]

bronco,

You posted,

"So, my advice is to apply for the claim, win it, then appeal for an earlier effective date, based on your hospital stay. It is very frustrating to do this the "long way", (instead of asking for an effective date of the hospitilazation from the get go)."

I've already won it and filed a NOD for an EED due to CUE in my 1978 rating decision.

My issues for the EED is currently remanded to the AMC by the BVA.

carlie

[broncovet]

Carlie

Thanks for the "heads up". Remember the "Red Green Show"..usually on about 10:30 or 11 pm? If you havent seen it, I recommend watching it..I think it is hilarious. Anyway, he says,

"Im pulling for you..we are all in this together".

So....Im pulling for you..we are all in this together.

[deltaj]

My hospital records were used by the VA to award me an EED. I don't think you get it automatically without making a claim except it the rare, odd case. I did not just get the EED from the VA's goodwill. I had asked for an EED on my TDIU based on my SSD records, but the VA used my earlier hospitalization to justify the EED. I think they purposely avoided using my SSD records to justify the EED, and, instead, used the hospital records. It amounted to exactly the same date for the EED. If they had used my SSD date then that would mean that they should use that date to justify awarding many vets an EED who got SSD years before TDIU or 100% from the VA. The VA does not scan our VAMC medical records for potential claims. In the process of a ongoing claim they might make a inferred claim or decide that hospital records were an inferred or informal claim to benefits, but you have to have made a claim first. It is like the AO exam. The doctor may find AO related conditions but that does not spark an automatic claim for benefits at all. You have to file a claim and go for a C&P exam. In the last 40 years I have never gotten a letter from the VA saying "Mr. King, on examination of your medical and hospital records we are making a claim on your behalf for benefits".

There may be a clue to why this was done in V.A. General Counsel Precedent Opinion 5-2003. Could someone technically savvy put up a link to that precedent opinion here? Thanks.