Wording For Initial Filing Of 21-526

[Raybob]

I am still on active duty, retiring next June, and will be filing my initial D&C claim this coming Dec -- 180 days out to qualify for the special Benefits Delivery at Discharge (BDD) program here in the DC area. I have attended briefings from the VA on how to fill out the forms and also from the DAV VSO (will also be attending briefings from AMVETS and Am Legion next month).

The DAV guy said to list the indication or symptom on the 21-526 rather than the diagnosis that is in my SMRs... for example, just list "low back pain" rather than "L4-L5 degeneration" and "herniated disk." His rationale is to make the VA look through my SMRs to find it and document it and not to do their work for them... and that they may find other related symptoms/diagnoses in the SMRs to add to the rating level.

Since I have the diagnoses already in my records, I would rather just put them all down as diagnosed... any recommendations on the best approach?

Thanks for any advice...this is agreat forum that I read almost every day!

Cheers,

Ray

[john999]

The question will the VA look through your SMR's and do the work. Knowing them they will uncover zip unless you stick their noses into it. Too bad you can't take your SMR's to a doctor and get him to look them over and point to any issues you might list. I was in the hospital twice in the Army. One time for a severe flu like disease and the other for a mental health issue. The VA never looked at anything until I filed a claim and then only at what I claimed.

[rentalguy1]

The DAV guy is wrong. You NEVER want to be vague with the VA. You ALWAYS want to have a EXACT diagnosis. If we give them something vague, they will have a easier time trying to weasel out of giving you the benefits that you have earned. I would tell them your exact diagnoses, and I would also tell them exactly how they line up with the rating criteria in 38 CFR 4. Then I would ask for specific percentages based upon those two things. If you show them that you know as much about their regs (politely) as they do, you are less likely to get screwed. Check my blogs for some tips on how to write stuff to the VA.

[Berta]

I agree 100% with Rentalguy-

and many BVA decisions on line support this too-

If I were you I would list the most disabling conditions first-that are documented in your SMRs and then any secondary conditions you have that they could have caused.

Accurate medical diagnoses forces the VA to actually understand what the diagnosis is and then to order a C & P that properly can assess the condition.

The logic of that DAV rep is ludicrous.

VA never hunts through SMRs as carefully as they should and neither do their C & P docs.

and a vague description of a disability is the way to a quick denial.

Say a vet just puts down disability due to sand flea bite. The VA might disregard this as a disability and not even try to rate it.

Say the vet instead puts down Leichmaniasis- a very serious disease because that is the diagnosis of a disability and disease they got from the flea bite and they have medical evidence and treatment for this.

That would get the VA to properly consider and rate the claim.

I have seen many very vague claims at the BVA-that could have had merit but the veteran failed to accurately spell out what their disability was.

My neighbor attached specific parts of his SMRs to his 21-526. He got an award in 8 months - most surprising for the RO we both deal with-and hopefully the BDD program will go even faster than that for you.

[broncovet]

This seems to be just one more "trap" to snare unsuspecting Veterans. As Rentalguy pointed out, if you are too vague, the VA uses that to deny benefits. However, if you are too specific, and the C and P Doc relates it to a related diagnosis, but not one specifically applied for, the Veteran looses again.

The VA is way, way, outside of regulations when they do this, but as long as there is no penalty for the VA voilating regulations, they will continue to do so at Veterans expense.

A really good example of why the VA is not supposed to trap Veterans this way is contained in Roberson vs Principii which states it this way:

"The Court of Appeals for Veterans Claims held that even if the VA had a duty to develop all possible claims that are reasonably raised from a liberal reading of the record, Roberson was required under section 3.155(a) to specifically request entitlement to the benefit sought – in this case TDIU. The Court of Appeals for Veterans Claims determined that because Roberson did not make a specific request for TDIU, the VA was not obligated to adjudicate such a claim.

Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). "

[rentalguy1]

The way to avoid what broncovet has mentioned is to also get a exact etiology, and a nexus from a qualified MD. Not one from a FNP or PA, but a MD. A specialist in the field is even better. It is hard to deny claims that are specifically linked to a in service event in the SMR's. Be sure to include copies of all records that include mention of the inservice event, diagnosis, nexus, and treatment with your claim for benefits.

[jbasser]

I am still on active duty, retiring next June, and will be filing my initial D&C claim this coming Dec -- 180 days out to qualify for the special Benefits Delivery at Discharge (BDD) program here in the DC area. I have attended briefings from the VA on how to fill out the forms and also from the DAV VSO (will also be attending briefings from AMVETS and Am Legion next month).

The DAV guy said to list the indication or symptom on the 21-526 rather than the diagnosis that is in my SMRs... for example, just list "low back pain" rather than "L4-L5 degeneration" and "herniated disk." His rationale is to make the VA look through my SMRs to find it and document it and not to do their work for them... and that they may find other related symptoms/diagnoses in the SMRs to add to the rating level.

Since I have the diagnoses already in my records, I would rather just put them all down as diagnosed... any recommendations on the best approach?

Thanks for any advice...this is agreat forum that I read almost every day!

Cheers,

Ray

Ray, the key point here is to do the work for the VA. No one has control over your claim except for you. unfortunatly, Bad advice often flows out of the mouths of veterans Service officers. They dont meman to be that way but on the other hand, You are in control.

Know what is wrong with you. You can get diagnosis from your treatment records, especially ragiography or MRI films as these are accirate diagnostic tools.

FIle for what the medical reports say if you are in agreement with them.

With any point of seeking service conenction, one must get a nexus to a condition and a period of time in service. That is the main link to Service connection.

Listen closely to Shane (Rental) as he is a heavy hitter when it comes to this stuff.

Hang in there.

J

Edited July 11, 2009 by jbasser