tdiu Eed Back To Date Entitlement

[Berta]

The recent reply I just made here to someone brings up this interesting way a favorable EED prior to date of claim could possibly be awarded.

We don't talk enough about the date the entitlement to a disability award "arose"

This case is a good read of how this works.

http://www4.va.gov/vetapp10/files1/1007467.txt

This is the key part of this case regarding this concept:

“Once service connection has been established or denied on the

basis that the claimed disability was noncompensable in

degree, receipt of specified types of medical evidence,

including VA examination reports, will be accepted as an

informal claim for increased benefits, or an application to

reopen. 38 C.F.R. § 3.157 (2009); see MacPhee v. Nicholson,

459 F.3d 1323, 1326 (Fed. Cir. 2006). For example, the date

of outpatient or hospital examination or date of admission to

a VA hospital will be accepted as the date of receipt of such

a claim. 38 C.F.R. § 3.157(B) (2009).”

It didnt work for the vet in this BVA decision but could certainly work for a better EED in some cases.I dont have time to find a BVA award as example but am sure they exist.

This case:

http://www4.va.gov/vetapp09/files2/0913734.txt

is a good example of how another type of favorable EED can be obtained up to one year prior to filing the claim when using the date that “entitlement arose”

Extraschedular TDIU etc-more favorable EED --- complex and lots of good info for the legal beagles in this case.

[broncovet]

Berta..

I think the VA often cites the date of the C and P exam as the "date entitlement arose" even tho the Veteran had symptoms of it much earlier and applied earlier. This suggests that the Veteran applied for ......... benefit "predicting" that he would have symptoms of it as of the date of the C and P exam, when, in fact, the Veteran most often already had symptoms and applied for benefits...its just that it was not FULLY documented for VA purposes until the date of the C and P exam. Most of the time the VA C and P examiner does not state something like.."Veteran has had symptoms of this condition since ........date" Instead, the examiner does not give an "onset of symptoms" date, and lets the VA assume the onset of symptoms was the C and P exam date.

This is absurd and almost never happens. It implies that the Veteran did NOT have the condition prior to the C and P exam, but somehow GOT the condition at the C and P exam! If I went to a C and P exam well and left the exam sick (with a disability), this implies that the C and P examiner caused the disability!

One of the problems here is the difference between Symptoms and diagnosis. The Va is supposed to compensate for symptoms, not a diagnosis. In fact, if the Veteran is diagnosed but is asymptomatic, he almost never gets compensation. A diagnosis is not enough...for example, the criteria for depression discusses symptoms, not a diagnosis.

I think there is some manipulation going on here by the VA. I think they suggest that well, we are not giving the Veteran a nickel until a doc gives a diagnosis. One example may demonstrate. Veteran gets a leg blown off in Vietnam. Veteran suffers from symptoms of a missing leg..phantom pain, has to get around without use of leg, etc. However, the Veteran may not be DIAGNOSED as an amputee until, maybe years later, or he may never be diagnosed! There may well have not been a physician available who is willing/able to diagnosis this! Does this mean the effective date should be when the doc diagnosed the Veteran was an amputee, or the date the Vet got his leg blown off? I think the regulations support the SYMPTOMS theory..not the date of the diagnosis, which could be days or years later.

I think the Va does this knowing that only a small percentage of the Vets will appeal the Effective date, so the Va gets out of paying for years.

Another problem is the definition of a claim, and even the definition of an increase! If the Veteran is SC for hearing loss, for example, and asks for an increase, does this mean he is seeking an increased percentage for hearing loss, or is him asking also for tinnitus an "increase"? If a Vet is SC for hearing loss, would him mentioning tinnitus to his audiologist constitute an informal claim? Or would he already have to be SC for tinnitus to ask for an increase for tinnitus via an informal claim?

Finally, there is an issue of Informal claims/inferred claims. Isnt it true that the Va has to infer claims, and if they dont, the Va can win an EED when the benefit is awarded if he "inferred" the claim? Does an inferred claim turn into an informal claim?

The date of the medical exam is supposed to be the informal claim date, if the claim is filed within a year. However, the Veteran is only required to file ONE Formal claim. The Veteran does not have to file a formal claim for EACH of his informal claims, as one will suffice.

I have more questions than answers, and I really dont think the courts know this either. For example, Rice vs Shinseki talks about the defination of a claim:

This case requires the Court to clarify what constitutes a claim. VA defines "claim" as "a

formal or informal communication in writing requesting a determination of entitlement or evidencing

a belief in entitlement, to a benefit"–in Mr. Rice's case, the benefit sought is a total disability rating

based on unemployability. 38 C.F.R. § 3.1(p) (2008). The term "claim," however, has been used

to describe a wide variety of circumstances in our jurisprudence: We have termed "claims" some

matters better thought of as issues within a claim. We have frequently addressed particular claimed

disabilities within a single application for benefits by referring to each asserted disability as a

separate "claim," while also referring to the application for benefits as a whole as the veteran's

"claim." We have used the word "claim" in a way that focuses more on the procedural posture of

a claim, e.g., an "original claim for benefits," Acciola v. Peake, 22 Vet.App. 320, 326 (2008) ("n

the context of original claims for benefits"); a "claim reopened after final adjudication," Goodwin

v. Peake, 22 Vet.App. 128, 138 (2008) ("[t]he effective date of an award based on . . . a claim

reopened after final adjudication"); a "claim to reopen," Vigil v. Peake, 22 Vet.App. 63, 65 (2008)

("[section] 3.1056© [of title 38, Code of Federal Regulations,] authorizes an effective date . . . up

to the date of the claim to reopen."); or a "claim for increased compensation," Bradley v. Peake, 22

Vet.App. 280, 286 (2008) ("[The appellant] contends that the disability ratings awarded . . . were not

the result of new claims for increased compensation."). See also 38 U.S.C. § 5110(a) ("[T]he

effective date of an award based on an original claim, a claim reopened after final adjudication, or

a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall

be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of

application therefor."). Motions alleging clear and unmistakable error (CUE) in a prior decision have

also often been referred to as "claims." See May v. Nicholson, 19 Vet.App. 310, 318 (2005)

("Although no statute of limitations exists for the filing of a CUE claim, the conclusion that such a

The Court notes that there is no such thing as a freestanding claim 3 for an earlier effective date. See Rudd v.

Nicholson, 20 Vet.App. 296, 299 (2006).

4 This is a statement of VA's usual treatment of applications that contain assertions of multiple disabilities or

conditions. It is not intended to limit the Court's recent holding that "multiple medical diagnoses or diagnoses that differ

from the claimed condition do not necessarily represent wholly separate claims," and that what constitutes a claim cannot

be limited by a lay veteran's assertion of his condition in his application but must be construed "based on the reasonable

expecations of the non-expert, self-represented claimant and the evidence developed in processing that claim."

Clemons v. Shinseki, No. 07-0558, 2009 WL 899773, at *4 (Vet. App. Feb. 17, 2009) (per curiam).

6

claim cannot properly be filed while that claim is still appealable on direct review is supported by

the definition of "finality" as to CUE claims that is provided in 38 C.F.R. § 20.1401(a)."). We have

used the word "claim" when we really mean the specific benefit sought, for example, a "claim for

dependency and indemnity compensation," Barela v. Peake, 22 Vet.App. 155, 156 (2008) ("[The

appellant] appeals . . . a Board . . . decision that denied her claim[] for . . . dependency and indemnity

compensation."), or a "claim for pension," Ingram v. Nicholson, 21 Vet.App. 232, 247 (2007) ("[The

appellant] was informed that his claim for pension was denied . . . ."). And, we have used "claim"

to refer to elements of a claim, such as a "claim for service connection," Gallegos v. Peake, 22

Vet.App. 329, 331 (2008) ("[T]he appellant filed a claim seeking service connection for both

disorders."), or a "claim for an earlier effective date," Edwards v. Peake, 22 Vet.App. 29, 30 (2008)

("Accordingly, the Board denied his claim for an earlier effective date.")3. As the judicial review of

Agency benefit decisions matures, we now see that the broad definition of "claim," as used by VA

and reflected in § 3.1(p), and the Court's fluid use of the term would benefit from an attempt to bring

some precision to its use in the future. Therefore, we conclude that it is now time to set forth a

general principle regarding "claims" for TDIU that embraces the intent of our jurisprudence.

When a veteran submits an application for benefits to VA, it may, as VA's definition makes

evident, encompass many claims; that is, each assertion of entitlement to benefits based on a specific

disability that is the result of a distinct cause is a separate claim for disability compensation.4 See

38 C.F.R. § 3.1(p). Thus, in a single application for benefits, a veteran might submit a claim for

compensation for a knee disability resulting from a basic training accident that occurred in 1970 as

well as a claim for compensation based on PTSD that the veteran believes to have been incurred

during service in Vietnam in 1972. Although both are included in a single application for benefits,

VA is likely to treat them as separate claims, and such treatment is not inappropriate. Each of these

We note that the holdings of our cases involving "claims for TDIU" 5 are not in conflict with what we find to

be a correct statement of the law in this regard. For example, in Chotta, the statement that the "TDIU claim was granted"

referred to a claim for an increased disability rating; in Dunlap, the Board was referring to an issue raised in conjunction

with the appellate review of an initial disability rating. Chotta, 22 Vet.App. at 82; Dunlap, 21 Vet.App. at 115.

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claims might just as easily have been submitted to VA on separate applications at different times

following service. The mere fact that they are filed at the same time and in the same application does

not change their character as separate "claims."

Our cases have been less than precise by simply adopting the term "claim for TDIU," which

is commonly used in VA adjudication parlance. See, e.g., Chotta v. Peake, 22 Vet.App. 80, 82 ("The

TDIU claim was granted . . . ."); Dunlap v. Nicholson, 21 Vet. App. 112, 115 ("The Board noted that

Mr. Dunlap had raised a claim for TDIU . . . ."). However, as its very title indicates, a finding that

an individual is entitled to TDIU (Total Disability based on Individual Unemployability) merely

means that the veteran has met certain qualifications entitling him to a "total disability" rating; in

other words, a disability rating of 100%. Rather than including those qualifications in the rating

schedule, VA has provided for this means of achieving a total disability rating in a separate

regulation because it potentially applies to all disabilities, or, in some cases, combinations of those

disabilities. Further, the rating schedule is based on the "average impairment in earning capacity

caused by a disability," whereas entitlement to TDIU is based on an individual's particular

circumstance. Thun v. Peake, 22 Vet.App. 111, 116 (2008).

[Pete53]

When I complained about how long the VARO was taking the VA types always replied. Don't worry you will get paid back to the date you filed your claim.

Its pretty bad when they lie like that cause if I have noticed anything the VA rarely does that.