tdiu Informal Claims And Earlier Effective Date

[broncovet]

The following is from select CAVC cases showing that if you were awarded benefits, and you told your doctor before the effective date of your claim you were unemployed, then you can appeal an effective date:

Else vs West

On appeal, the

appellant essentially contends that the RO, in 1990, had treated the

appellant's submission of the 1989 private medical records as an

Previous Hitinformal claimNext Hit for an increase and that, because the RO never forwarded to

the appellant a formal application form, the time for filing a formal

application was tolled.

http://search.vetapp.gov/isysquery/3583606...a4fa2cf6/2/doc/

Mingo vs Nicholson

http://search.vetapp.gov/isysquery/3583606...a4fa2cf6/3/doc/

<a name="term1_9">

VA is required to identify and act on informal claims for benefits. 38 U.

S.C. 5110((3) (2006); 38 C.F.R. 3.1(p), 3.155(a). The Board

commits remandable error when it fails to consider evidence that may be

construed as an earlier application or claim, formal or informal,

entitling the claimant to an EED See 38 U.S.C. 7104(

a); Servello v. Derwinski, 3 Vet.App. 196, 198-99 (1992).

Although "[t]he mere existence of medical records generally cannot be

construed as an informal claim such records may constitute an informal claim"when an underlying claim has been awarded . . . or when an

underlying claim has been denied and the medical records evidence new and

material evidence to reopen the claim." Criswell v. Nicholson, 20 Vet.App.

501, 504 (2006). In the case of a report of examination or

hospitalization by VA, "when such reports relate to examination or

treatment of a disability for which service-connection has previously been

established," "[t]he date of outpatient or hospital examination or date of

admission to a VA . . . hospital will be accepted as the date of receipt

of a claim." 38 C.F.R. 3.157((1) (2007). An for a

rating increase triggered by receipt of medical records may implicate

consideration of TDIU. See Norris v. West, 12 Vet.App. 413, 420-22 (1999);

see also Sears v. Principi, 16 Vet.App. 244, 249-50 (2002), aff'd, 349 F.

3d 1326 (Fed. Cir. 2003).

In this case, the appellant alleges that, because "VA is the primary

source of [her] health care, and since she was already service-connected,

the VA had a continuing obligation to adjudicate any claims for additional

benefits related to her service-connected conditions based on . . . VA

medical treatment." Appellant's Br. at 7. The Secretary responds that "

evidence may exist that could be used to establish a claim for an

EED for TDIU; however, there is no assertion that actual

evidence does, indeed, exist." Secretary's Br. at 12. He goes on to

state that "[t]he mere existence of evidence prior to May 1998 . . . would

not create an informal claim nor would it constitute a claim outright."

Secretary's Br. at 12. The Secretary's argument is unavailing; if there

are medical records that document a worsening of the appellant's service-

connected sinus condition prior to the

appellant's inquiry in May 1998, such records might constitute an

informal claim for an increased rating based on 38 C.F.R. 3.157(:D.

Indeed, the appellant notes that the RO relied on VA treatment reports

from March 1998 throughout its claim evaluation. Appellant's Br. at 6 (

citing R. at 72-73, 75-77, and 79-82). Because the Board did not consider

these treatment records as potentially raising an informal claim and

because the record before the Court is devoid of evidence that VA

considered additional prior-treatment records, the Court cannot conclude

that records relevant to establishing an earlier effective date do not

exist. ....

Jones-Shinseki

http://search.vetapp.gov/isysquery/e76aa21...dd3db/2/hilite/

Mr. Jones argues that, under Myers v. Principi, 16 Vet.App. 228 (2002), a VA procedural

error can cause a claim stream to remain open. In particular, he contends that once he filed an NOD

with the February 1974 RO decision, that claim, then in appellate status, remained open and pending

until issuance of an SOC or Board decision adjudicating that claim. He argues that no finality

attached to the subsequent adjudications as a result of VA's failure to issue an SOC following his

March 1974 NOD.

Once a decision is issued by the RO, a claimant has the right to "one review on appeal to the

Secretary." 38 U.S.C. § 7104(a). The appeals process begins with a claimant's filing of an NOD

from an RO decision, which triggers VA's duty to issue an SOC. See 38 U.S.C. § 7105(a), (d)(1).

Only after an SOC has been issued may a claimant file a Substantive Appeal to the Board. See

38 U.S.C. § 7105(d)(1).

If the Secretary fails to act on a claim or if he fails to provide the veteran with information

or material critical to the appeal, that claim remains pending. See Cook v. Principi, 318 F.3d 1340,

1334 (2002) (citing Hauck v. Brown, 6 Vet.App. 518 (1994)); Norris v. West, 12 Vet.App. 413, 422

(1999); see also 38 C.F.R. § 3.160© (2008) (defining a "pending claim" as "[a]n application, formal

or informal, which has not been finally adjudicated"). Here, the Secretary does not contest

Mr. Jones's contention that his September 1973 claim was put into appellate status by a March 1974

NOD and remained pending through subsequent adjudications because of VA's failure to issue an

SOC; the Court will not hold otherwise. See Tablazon v. Brown, 8 Vet.App. 359 (1995)

(determining that a 1975 RO decision never became final, because without an SOC, the appellant

was unable to file an appeal to the Board).

This Court has indicated, however, that where the claim was placed into appellate status by

virtue of an NOD, subsequent RO decisions cannot resolve the pending claim. "[O]nce an NOD has

been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal

that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that

was initiated but not completed." Juarez, 21 Vet.App. at 543. The Court agrees that Juarez's

reasoning applies here: An appeal can only be resolved by an appellate body, i.e., the Board. In other

words, VA's failure to provide appellate review can only be cured by subsequent Board adjudication

of the same claim.

[deltaj]

The following is from select CAVC cases showing that if you were awarded benefits, and you told your doctor before the effective date of your claim you were unemployed, then you can appeal an effective date:

Else vs West

On appeal, the

appellant essentially contends that the RO, in 1990, had treated the

appellant's submission of the 1989 private medical records as an

Previous Hitinformal claimNext Hit for an increase and that, because the RO never forwarded to

the appellant a formal application form, the time for filing a formal

application was tolled.

http://search.vetapp.gov/isysquery/3583606...a4fa2cf6/2/doc/

Mingo vs Nicholson

http://search.vetapp.gov/isysquery/3583606...a4fa2cf6/3/doc/

</a><a name="term1_9">

VA is required to identify and act on informal claims for benefits. 38 U.

S.C. 5110((3) (2006); 38 C.F.R. 3.1(p), 3.155(a). The Board

commits remandable error when it fails to consider evidence that may be

construed as an earlier application or claim, formal or informal,

entitling the claimant to an EED See 38 U.S.C. 7104(

a); Servello v. Derwinski, 3 Vet.App. 196, 198-99 (1992).

Although "[t]he mere existence of medical records generally cannot be

construed as an informal claim such records may constitute an informal claim"when an underlying claim has been awarded . . . or when an

underlying claim has been denied and the medical records evidence new and

material evidence to reopen the claim." Criswell v. Nicholson, 20 Vet.App.

501, 504 (2006). In the case of a report of examination or

hospitalization by VA, "when such reports relate to examination or

treatment of a disability for which service-connection has previously been

established," "[t]he date of outpatient or hospital examination or date of

admission to a VA . . . hospital will be accepted as the date of receipt

of a claim." 38 C.F.R. 3.157((1) (2007). An for a

rating increase triggered by receipt of medical records may implicate

consideration of TDIU. See Norris v. West, 12 Vet.App. 413, 420-22 (1999);

see also Sears v. Principi, 16 Vet.App. 244, 249-50 (2002), aff'd, 349 F.

3d 1326 (Fed. Cir. 2003).

In this case, the appellant alleges that, because "VA is the primary

source of [her] health care, and since she was already service-connected,

the VA had a continuing obligation to adjudicate any claims for additional

benefits related to her service-connected conditions based on . . . VA

medical treatment." Appellant's Br. at 7. The Secretary responds that "

evidence may exist that could be used to establish a claim for an

EED for TDIU; however, there is no assertion that actual

evidence does, indeed, exist." Secretary's Br. at 12. He goes on to

state that "[t]he mere existence of evidence prior to May 1998 . . . would

not create an informal claim nor would it constitute a claim outright."

Secretary's Br. at 12. The Secretary's argument is unavailing; if there

are medical records that document a worsening of the appellant's service-

connected sinus condition prior to the

appellant's inquiry in May 1998, such records might constitute an

informal claim for an increased rating based on 38 C.F.R. 3.157(.

Indeed, the appellant notes that the RO relied on VA treatment reports

from March 1998 throughout its claim evaluation. Appellant's Br. at 6 (

citing R. at 72-73, 75-77, and 79-82). Because the Board did not consider

these treatment records as potentially raising an informal claim and

because the record before the Court is devoid of evidence that VA

considered additional prior-treatment records, the Court cannot conclude

that records relevant to establishing an <a href="http://search.vetapp.gov/isysquery/35836065-754e-48a1-b293-bd76a4fa2cf6/3/doc/#hit21" target="_blank">earlier effective date do not

exist. ....

Jones-Shinseki

http://search.vetapp.gov/isysquery/e76aa21...dd3db/2/hilite/

Mr. Jones argues that, under Myers v. Principi, 16 Vet.App. 228 (2002), a VA procedural

error can cause a claim stream to remain open. In particular, he contends that once he filed an NOD

with the February 1974 RO decision, that claim, then in appellate status, remained open and pending

until issuance of an SOC or Board decision adjudicating that claim. He argues that no finality

attached to the subsequent adjudications as a result of VA's failure to issue an SOC following his

March 1974 NOD.

Once a decision is issued by the RO, a claimant has the right to "one review on appeal to the

Secretary." 38 U.S.C. § 7104(a). The appeals process begins with a claimant's filing of an NOD

from an RO decision, which triggers VA's duty to issue an SOC. See 38 U.S.C. § 7105(a), (d)(1).

Only after an SOC has been issued may a claimant file a Substantive Appeal to the Board. See

38 U.S.C. § 7105(d)(1).

If the Secretary fails to act on a claim or if he fails to provide the veteran with information

or material critical to the appeal, that claim remains pending. See Cook v. Principi, 318 F.3d 1340,

1334 (2002) (citing Hauck v. Brown, 6 Vet.App. 518 (1994)); Norris v. West, 12 Vet.App. 413, 422

(1999); see also 38 C.F.R. § 3.160© (2008) (defining a "pending claim" as "[a]n application, formal

or informal, which has not been finally adjudicated"). Here, the Secretary does not contest

Mr. Jones's contention that his September 1973 claim was put into appellate status by a March 1974

NOD and remained pending through subsequent adjudications because of VA's failure to issue an

SOC; the Court will not hold otherwise. See Tablazon v. Brown, 8 Vet.App. 359 (1995)

(determining that a 1975 RO decision never became final, because without an SOC, the appellant

was unable to file an appeal to the Board).

This Court has indicated, however, that where the claim was placed into appellate status by

virtue of an NOD, subsequent RO decisions cannot resolve the pending claim. "[O]nce an NOD has

been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal

that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that

was initiated but not completed." Juarez, 21 Vet.App. at 543. The Court agrees that Juarez's

reasoning applies here: An appeal can only be resolved by an appellate body, i.e., the Board. In other

words, VA's failure to provide appellate review can only be cured by subsequent Board adjudication

of the same claim.

The link for the Michael Else v. Togo West at the U.S. Court of Veterans Appeals didn't work. That case number is 97-915. Thank you for posting these cases.

[cowgirl]

Thank you Bronco, good stuff that I'll tuck in my hat. Course I can expect the effective date correct the first time around. Maybe I could donate a bit to the scholarship fund for the claims processors grandkiddos?

[Testvet]

I still have to decide if I want to fight my effective date, I sent a letter to then Sec Principi in Nov 2002 before my SO from the American legion filed my offical claim, I told him I had a laundry list of medical issues I felt were SC and I listed them, stress, (PTSD) cardiac, COPD, GERD, Rashes, ED, bad back, hemmeroids, memory losss, and a few others, I told him I knew my claim was going to be trouble due to the Edgewood experiments, Agent Orange on the DMZ in Korea, Gulf War, the assault and robbery in Alaska and a few other causes, he sent my letter to the Director of VARO in Montgomery Alabam who responded on Dec 6 saying I hadn't filed a claim yet etc, now they refuse to acknowledge the Nov 2002 letter as an informal claim and are beating me out of backpay from Nov 2002 - Dec 2003 thats a lot of money and I am really thinking hardabout filing another appeal. 25 grand roughly is 25 grand.....

[john999]

TestVet

If it won't stress you too much go for it. You could buy a better pool or hot tube.

[broncovet]

Delta

Sorry the links did not work..I am not sure why..they did work before when I posted them. Thanks for posting the case numbers.

Testvet

My 2 cents worth: I recommend you appeal. If you have a copy of that letter that surely it would be considered an informal claim for benefits. Reason: Altho an appeal could take years and years, this money could ultimately eventually become a "college fund" for your grandchildren. Go for it.

[Testvet]

Bronco I have copies of everything I ever sent to the VA rofl and their responses.......