Brokowski 3 Part Test:

[broncovet]

I have wondered why sometimes people seem to get their informal claims called an informal claim, while other times it seems like the VA says that just because you visit the VA doc, does not necessarily mean you want to apply for that benefit. The Court of Appeals for Veterans Claims narrowly interprets the VA duty to fully and sympathetically develop the veterans claim to its optimum by determining all potential claims raised by the evidence. whether a claim for service connection for condition X requires VA to adjudicate a claim for service connection for condition Y (as well as condition X) turns on what the veteran or representative said during the time that the claim for condition X was being considered by VA. As the CAVC put it in Brokowski v. Shinseki the VA has no obligation to adjudicate a claim for service connection for condition Y unless the record . . . satisfie all three requirements for an informal claim for disability compensation for [condition Y]. The Brokowski test: (in my own words) 1. The Claim must be written. Telling the doc something means nothing unless he wrote it in your records. 2. There must be an "intent" for the Veteran to apply for benefits. 3. The Veteran must "specify the benefit sought". I will add here that by specifying the benefit sought, this does not mean the Veterans specifies a diagnosis, where symptoms will suffice.

[Berta]

Brokowski has to be carefully read over to see how the regs were applied.

My take on the 'symptom' part is different than yours-"in helping the Veteran get an EED."

My current AO claim reflects what I mean.

I want a 6 year staged rating for IHD based on documented evidence in the clinical record (one could consider the evidence as 'symptoms' enough to warrant a diagnosis -EKGs etc)but the diagnosis came 9 years after the initial documented 'symptoms' and came 3 years after my husband died.

A staged rating would provide a better EED than what they gave me.Or a faorable result on my CUE claim.

But the "intent" for benefits was clearly there--- this was part of my husband's 1151 claim pending at his death which I re-opened.

[broncovet]

Berta

I appreciate your "take" on this.

You indicated that a "staged" rating would be an improvement over the one that they gave you, and I dont doubt that one bit. For me, however, while it would be better than the one they gave me, I am going to ask for the "whole loaf" and not just a few slices. It has been my experience when you ask for the whole loaf you may get a few slices, but if you ask for a slice, you will be lucky to get crumbs.

I have always understood the VA paid benefits on SYMPTOMS not on a diagnosis, even tho the doctor needs to make such a diagnosis. One very good example of this is the Veteran who is diagnosed with an illness but is asymptomatic...so he isnt getting any compensation. Of course, a particular disease or injury can, and does, affect people in widely different ways. A gun shot wound, as an example, could render one Veteran crippled or even dead, while another Veteran could have a GSW and suffer no ill effects from it.

My guess is that the disability rating percentages for a GSW would also vary widely from zero to 100% depending upon the symptoms. Other diagnosis, too, would vary widely in severity of symptoms.

While I am not claiming to be an expert, I do read a lot, and it is hard for me to understand why you would want "staged" ratings UNLESS you could not get the higher rating earlier. In my claim, I am trying to avoid staged ratings, I would much rather have 100% effective in 2002 rather than 40% from 2002 to 2007. Of course, I would much rather have 40% rather than 0% for the period, but your case is obviously different, and comes under different regulations..I think yours comes under "accrued benefits", while mine does not. I think you mentioned yours is a "Nehmer" claim while mine is not, also. I will admit I dont know that much about either Nehmer or "accrued benefit" claims, but that would not appear to make a difference in refernce to "staged ratings" IMHO.

[broncovet]

The reason I brought up the "symptoms vs diagnosis" issue is because I am guessing some Vets could have easily applied for an informal claim using symptoms, while leaving it to a doctor to make a diagnosis. That is, if the Vet applied for benefits with symptoms of x, y, z, he should get that as an effective date when the doctor diagnosis confirms service connected condition A has symptoms of x, y, and z.

I do think the VA often tries to make the date of the diagnosis or the C and P exam the effective date, but I think that many Vets should protest this, if their symptoms were bad earlier.

[Berta]

"it is hard for me to understand why you would want "staged" ratings UNLESS you could not get the higher rating earlier."

I think I rattled off the basis of my claims ad finitum here already.

Maybe if I state this again it will help someone else out there with 1151 and FTCA issues.

My husband's heart attack was misdiagnosed and left untreated by VA in 1988.6 years later he died of massive heart attack.

I proved the VA not only malpracticed on his heart disease and caused his death- but I have also proved they caused a major CVA he had, and in my recent award I proved they malpractice on DMII from AO as the ultimate cause of his death.

My award letter last year said they agreed he died due to AO diabetes but would not consider his death as coming under Nehmer

because they could not rate or give any percent for his DMII.I proved he had this AO disabilty that never appears once as diagnosis in his med recs.I received multiple ancillary benefits from the award however as it was a direct SC death.

The VA has since declared his death as coming under Nehmer.

BUT the VA did have ample evidence to rate his IHD from the DMII starting with the 1988 heart attack.

In the 1151 award letter they rated him for Sinus condition NSC ( this was their diagnosis of his heart attack in 1988)

I proved he didn't even have a sinus condition.OGC agreed and also agreed with me that the 6 years of prescribed sudafed for a condition they knew he didnt have lent assistance to his death.

They rated his 1151 (now AO DMII CVA) but I cued that rating and they NEVER rated his IHD at all (I filed another CUE on that.

Per VA schedule of ratings he should have been granted potentially 100% for 3 months after the initial heart attack but that rating might be impossible for the VA to grant and then a staged rating for the rest of his life. This would have to be based on residuals up to the ECHO when he had a major CVA.Then at 60% or greater until his death with % for the residuals

I am going for the highest potential benefit.VA might say since the VA sent him back to work (he worked at the VA)3 days after this initial heart attack-(his condition did get progressively worse that same year with TIA strokes)that his overall rating for a period would be as low as maybe 10% (I dont remember the IHD ratings)and I might agree that this would be fair to a point.However once this malpracticed IHD caused a major CVA and then his death,I will vigourously fight any ratings that appear to be too low- based on the clinical record.

When the VA malpractices on a veteran to the point they cause the veteran's death and then the survivor ultimately succeeds in direct SC death (I know of no other case like mine -last I heard neither did NVLSP) but I am sure there must be a few)that means the VA -if the case falls under Nehmer and the death was caused by AO - sure isn't done paying for what they did regarding the malpractice.

Edited March 22, 2011 by Berta

[Berta]

to clarify this:

"When the VA malpractices on a veteran to the point they cause the veteran's death and then the survivor ultimately succeeds in direct SC death (I know of no other case like mine -last I heard neither did NVLSP) but I am sure there must be a few)that means the VA -if the case falls under Nehmer and the death was caused by AO - sure isn't done paying for what they did regarding the malpractice. "

What I mean is that the survivor might well be eligible for accrued benefits they never got, such as SMC accrued.

Say the veteran died with PTSD rated at 100% SC P & T and had a past denied heart disease claim and was incountry veteran- Vietnam.

The veteran died as direct consequence of IHD.

The SOC denying the IHD might show a 60% NSC rating.

This would most likely warrant a proper SMC accrued award to the survivor under the Nehmer Court Order for the additional SMC benefit the veteran was eligible for.

Traditional accrued awards can have limits.

Accrued benefits under Nehmer is different with no limits

Edited March 22, 2011 by Berta

[deltaj]

"it is hard for me to understand why you would want "staged" ratings UNLESS you could not get the higher rating earlier."

I think I rattled off the basis of my claims ad finitum here already.

Maybe if I state this again it will help someone else out there with 1151 and FTCA issues.

My husband's heart attack was misdiagnosed and left untreated by VA in 1988.6 years later he died of massive heart attack.

I proved the VA not only malpracticed on his heart disease and caused his death- but I have also proved they caused a major CVA he had, and in my recent award I proved they malpractice on DMII from AO as the ultimate cause of his death.

My award letter last year said they agreed he died due to AO diabetes but would not consider his death as coming under Nehmer

because they could not rate or give any percent for his DMII.I proved he had this AO disabilty that never appears once as diagnosis in his med recs.I received multiple ancillary benefits from the award however as it was a direct SC death.

The VA has since declared his death as coming under Nehmer.

BUT the VA did have ample evidence to rate his IHD from the DMII starting with the 1988 heart attack.

In the 1151 award letter they rated him for Sinus condition NSC ( this was their diagnosis of his heart attack in 1988)

I proved he didn't even have a sinus condition.OGC agreed and also agreed with me that the 6 years of prescribed sudafed for a condition they knew he didnt have lent assistance to his death.

They rated his 1151 (now AO DMII CVA) but I cued that rating and they NEVER rated his IHD at all (I filed another CUE on that.

Per VA schedule of ratings he should have been granted potentially 100% for 3 months after the initial heart attack but that rating might be impossible for the VA to grant and then a staged rating for the rest of his life. This would have to be based on residuals up to the ECHO when he had a major CVA.Then at 60% or greater until his death with % for the residuals

I am going for the highest potential benefit.VA might say since the VA sent him back to work (he worked at the VA)3 days after this initial heart attack-(his condition did get progressively worse that same year with TIA strokes)that his overall rating for a period would be as low as maybe 10% (I dont remember the IHD ratings)and I might agree that this would be fair to a point.However once this malpracticed IHD caused a major CVA and then his death,I will vigourously fight any ratings that appear to be too low- based on the clinical record.

When the VA malpractices on a veteran to the point they cause the veteran's death and then the survivor ultimately succeeds in direct SC death (I know of no other case like mine -last I heard neither did NVLSP) but I am sure there must be a few)that means the VA -if the case falls under Nehmer and the death was caused by AO - sure isn't done paying for what they did regarding the malpractice.

Berta, In August 2010 V.A. printed a new regulation in the Federal Register that states that ischemic heart disease in Vietnam veterans includes coronary artery disease. I gather from my reading online that the new regulation is retroactive. This may help you get two years of accrued benefits. I recently printed out copies of this new regulation and press releases on it for a friend of mine who goes to church with me and who is the widow of a vietnam veteran. She told me that when her husband was alive he tried to get V.A. to service connected his heart condition after a heart attack. This widow had already been denied Death and Indemnity Compensation for her husband's death from another heart attack. I told my friend to contact a service organization to discuss whether she should reopen her claim for DIC or should file a new claim for DIC. I recommended DAV or Vietnam Veterans of America.