2001 Vamc Primary Phy "advised To Go To Dav & File Claim" Is That An Informal Claim

[dtclou]

Jan 2006 my husband was just rated 10% for Stomach/bowel/colon problems ....We sent NOD - (feel it should be much higher) But atleast he was granted S/C & rated..... *He had formally filed 3/05.

I just got his VAMC records & found that in 2001 his primary physician at VAMC "advised him to go to DAV & put in a claim for stomach & colon problems."

He didn't at that time - he just wanted to get "fixed" . He realized that wasn't going to happen & put in the claim 3/05.

Was that an informal claim in 2001?

Does it establish a retro payment date?

Can we request retro payments to the date she made this note, since he was S/C & rated?

It is clearly in his VMAC records - and from what I've learned here on Hadit - I think it is an informal claim -but wanted ask on this senario specifically before we filed anything else.

Also - if this is informal w/retro intitled - should we wait until after decession on the NOD? Or go ahead & send in request now? It doesn't have a time limit does it?

Thanks,

dtclou

[Testvet]

NO NO NO being advised to file a claim and then you don't heed that advice does not establish an earlier effective date, he should have filed the claim in 2001 like his doctor advised him then he either would have been awarded the claim earleir, or like you state it would have established an earlier effective date, I had open heart surgery at the VA hospital in 1997 I did not file a claim until Dec 2002, but I had sent a letter to Sec Principi in Nov 2002 asking for his help since I knew that my claimw as going to be a mess because of the human test subject issue and the 1st Gulf War, so the letter to the VA Secretary does establish an informal claim, but I did get the claim filed by the AL SO in Dec 2002, I asked him to file it in Oct, but like most SO's this one was slow and useless. The claim date will be the date your husband filed the claim thru his SO, I file my own by going to the VARO and get a date stamped copy now, then let my SO complain about it. But I lock up the effective dates.

[Guest Morgan]

The reason neither of these have an earlier ED is because a timely claim was not filed. A VA hospitalization, treament, or examination can be used as ED if the formal claim is filed within a year.

[Hoppy]

I remember Berta putting up a post long ago that mentioned something about a situation when there are C&P exams after that notation in the file it would kick back to the date of the exam or the filing date. Which ever is earliest.

[dtclou]

Thank you all, I'm glad I ask!!! I was thinking since it was a VA exam/treatment & documented, it would be similar to the C&P that he just had. Someone told me he could use for his ear/hearing loss as informal claim date - since the examiner then kept refering to his ear problems in service.

It has certainly been past the 1 year mark for the stomach, and yes I agree....he should have filed back then.....He just wouldn't - I think he was in denial that it would be a lifelong problem.......

[Guest Morgan]

Here's the main issue for this:

Per 38 CFR 3.400(o), the effective date of an increase in compensation can be the earliest date on which the evidence shows that an increase in disability has occurred, if a claim is received within one year of this date.

When the VARO receives anything that is to be considered an informal claim, it is supposed to send the veteran a VA Form 21-8358. That means the clock has started ticking. Many veterans have missed retro pay because this is not commonly known...at least not with the veterans I have worked with. Some of them received the claim form but had no idea what it was. Thought it was just another piece of paperwork for the hospital. They only realize that the earlier effective date (EED, for the newbies) is lost after they try to file a claim and they begin to think, Hey, wait a minute! This started 10 years ago when I was in the hospital...

By then, it's too late.

Here's more of what the M21-1 days about this:

Change Date November 15, 2004

Veterans who are admitted to uniformed services hospitals are asked if they ever filed a claim for compensation or pension with VA. If the veteran has ever filed a claim for compensation or pension, the hospital completes VA Form 21-8358, Notice to Department of Veterans Affairs of Admission to Uniformed Services Hospital, and sends one copy of the form to the regional office (RO) having custody of the veteran's claims folder.

Notes:

If the RO having custody of the veteran's claims folder is unknown, the hospital will send a copy of VA Form 21-8358 to the nearest RO.

Hospitals will not send notification of outpatient treatment and admissions that are solely for the purpose of examination.

Evidence of examination or hospitalization in a VA or uniformed services health care facility is an informal claim for

• an increased evaluation of a condition that was previously service-connected (SC), or
  
• a reopened claim for pension that was previously denied because the disability was not permanently and totally disabling.
  
  
  Reference: For more information on uniformed services medical facilities, see
  
  M21-1MR, Part III, Subpart ii, 2.D.18.c, and M21-1MR, Part III, Subpart iii, 1.C (TBD) or M21-1, Part IV, Chapter 6.10 through 6.13.
  
  If a completed VA Form 21-8358 is received from a uniformed services hospital
  
  
  • review it with the claims folder, and
    
  • request hospital reports or other information on VA Form 21-8359, Information Re Veteran in Uniformed Services Hospital or Dispensary, if any of the following apply:
    
    -
    a formal claim for pension or compensation is pending or has been allowed
    
    
    
    -
    a formal claim for pension was denied because the disability was not permanently and totally disabling
    
    
    
    -
    a formal claim for compensation was denied because the service-connected disability was not compensable in degree, or
    
    
    
    -
    in the case of a retired member of a uniformed service, a formal claim for pension or compensation has been denied because of receipt of retirement pay.
    
    
    

    If any of the above do not apply, file the VA Form 21-8358 in the claims folder.
    
    Per 38 CFR 3.400(o), the effective date of an increase in compensation can be the earliest date on which the evidence shows that an increase in disability has occurred, if a claim is received within one year of this date.
    
    Follow the steps in the table below if the VA medical evidence shows treatment for
    

    • an SC disability, or
      
    • manifestations of the SC disability.
      
      1. Accept the date of admission for treatment for an SC disability as the date of claim for increased evaluation.
         
      2. Establish and maintain control of the claim.
         
      Follow the steps in the table below to accept evidence for a claim that

      [*]specifies the benefit sought, and

      [*]is received within one year of treatment.

      As an informal claim.

      Accept evidence of examination or hospitalization at a VA or uniformed services health care facility.

      Liberally interpret reasonable probability of a valid claim.

      [*]If there is the probability of a valid claim, refer the claim for development.

      [*]Establish and maintain control of the claim.

Edited February 19, 2006 by Morgan