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Inferred Claims/effective Dates

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Vync

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  • Content Curator/HadIt.com Elder

Inferred claims/effective dates

This might be a bit wierd...

Regarding inferred claims and effective dates, I understand that if you seek medical treatment within 12 months of your claim request, then the EED is the date when treatment was sought.

Given this hypothetical situation, what would be the effective date?

Jul 2007 - Office visit, condition diagnosed, prescribed monthly medication to treat condition

{insert 3-4 VA telenurse refill calls}

Aug 2009 - Office visit for condition

Oct 2009 - Filed claim for condition

The medication refills were requested every month and renewed via VA nurse line as needed.

Would the effective date be Jul 2009, Aug 2009, a VA telenurse refill call between Oct 2008 and Jul 2009, or by oldest date where refills were received?

I'm curious if the VA defines the inferred date based on an office visit, telenurse refill calls, or merely because the Vet was receiving medication for the condition (i.e. receiving treatment).

Thanks

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  • HadIt.com Elder

I got an EED based on a hospitalization for IU. However, I had to appeal the original TDIU date I got based on when the VA got my request for IU. At first I tried to use the date I was considered disabled by SSA. The VA did not buy that but the dates of SSD and the hospitalization are the same date. When you get to inferred claims the VA is going to fight. You have to prove to them that the claim should have been inferred. That is not how it is supposed to work. They are supposed to look at the facts and infer the claim. I don't think I have ever heard of them doing it. For instance, you are rated 30% and have SSD. The VA knows this. They don't infer a claim for IU until you get 70%. This is wrong by their own regs. Any documented indication that you may not be able to work is supposed to trigger an inferred IU claim according to VBM. It never happens. I think this happens all the time during C&P exams. The doctor finds problems that should be inferred as secondary to a primary SC condition, but no inferred claim results. You have to file a claim and try to get the VA to accept the facts revealed in the c&p as being the effective date of an inferred claim. This is absurd.

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  • HadIt.com Elder

I rarely see anyone post here that VA awarded a claim for something that they did not ask for in the first place

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  • HadIt.com Elder

That certainly makes a difference, as my previous response/post was for original claims. I'd need a clarification on those dates, you posted, to give an accurate answer.

pr

Sorry, I forgot to note that this is for an increase request, not an initial rating.

§3.400 (o)(2), see below:

(o) Increases (38 U.S.C. 5110(a) and 5110(;)(2), Pub. L. 94-71, 89 Stat. 395; §§3.109, 3.156, 3.157):

(1) General. Except as provided in paragraph (o)(2) of this section and §3.401(:D, date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.

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  • Moderator

John is right. The VA doesnt "infer" claims, instead they "ignore" them. I think you just need to be lucky and get a judge like Davis, in Comer, below. The VA is supposed to give the Veteran the "benefit of the doubt" and "liberally interpret" the Veterans filings. The problem boils down to "specifying the benefit sought", and, as the judge in Comer stated,

"The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); see also Jaquay, 304 F.3d at 1280 (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”). The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him. To the contrary, the VA “has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have.”

I think that is precisely what the VA does..it "sets a trap for the unwary Veteran". If the Veteran sought a claim for "mental illness" and his diagnosis was "depression", they would say he didnt "specify the benefit sought".

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  • Content Curator/HadIt.com Elder

bronchovet,

I wish the VA would take the "benefit of the doubt" and "liberally interpret" parts more seriously. It seems that they try to go way out of their way to find any reason to deny, even if the reason is rediculous.

Barrett v. Nicholson sounds like they ordered the VA to make every effort to tilt the scales toward the VA, but in reality the opposite still happens.

The "assisting them in developing claims they may have" part is misleading. Because they attempt to restrict the regular VA docs from writing nexus statements "because that is the job of the BVA C&P examiners", the developing part amounts to record requests and diagnostic exams. This is a "let's work on a team but only one person is allowed to offer an opinion" approach.

Sorry to be pessimistic, but I have been having some frustration about my claim seemingly going nowhere.

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  • HadIt.com Elder

When in doubt about your claim produce more evidence. Ask Berta about what the nature of evidence can be.

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