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]

Delta-I filed a AO IHD claim the same day the regs came out.I was also a commenter on this regs before they were published.

The VA is working on my AO IHD and SMC CUE accrued claim.Also a claim for accred Aid and Attendance. Their recent letter said they can make a decision as soon as I return the response form.

The 2 year accrued laws are not applicable to the Nehmer Court Order.The survivor doesn't even have to formally file a claim for accrued,per NVLSP.

The only reference I have for this this email from Rick Spataro at NVLSP:

"Hi Berta,

Happy New Year and happy belated birthday! You are correct that no formal accrued benefits claim needed to have been filed in order to be entitled to accrued benefits under the Nehmer rules."

Rick

Richard V. Spataro

Staff Attorney

National Veterans Legal Services Program"

I know it is somewhere in the extensive Nehmer Training Guide too but I don't have time to find it.

I have been in contact with Rick many times regarding the nuances of Nehmer.

If the VA awards accrued benefits to any Nehmer survivor, there is no 2 year limit on the accrued amount. It could potentially be quite a high amount.

I have posted considerable info on Nehmer and DIC in our AO forum.

[retiredat44]

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.

exactly,,, having symptoms of several diseases, with some of them still needing a form diagnosis,, others got a diagnosis or firmer diagnosis after years of illness, appointments, test, and worsening conditions...

symptoms vs diagnosis has been hell..

filing for symptoms while waiting for a diagnosis.. is hell.. sick and tired of some VA claims rep saying' there is no evidence of that'...

see the picture I posted of my records and you can see I have more than enough evidence.. and would gladly help shive it up their butts so they can feel how much evidence I have..

[WAC-Vet75]

There is another issue, some of us older Vets are experiencing. Years ago, we weren't permitted to view our VA medical records. They would actually LOCK them up, when you had to hand carry them to clinic (remember?). Some of us were actually diagnosed with diseases, and never even told about it! I was dx'd with collagen vascular disease, back in 1977, NEVER told, NEVER treated. It wasn't until after I was dx'd with MS in the late 1990's that I discovered the 1977 diagnosis. I had no idea what collagen vascular disease was, there was nothing in the rating system for such a disease, and eventually learned it was actually Lupus (SLE). It was a civilian Doctor that dx'd me with Lupus, in the mid 1990's, but I didn't know it had already been diagnosed in 1977! There are still many older Vets who have no idea that they are now permitted to view their medical records! This, to me, is medical malpractice. These same Vets may now be "rediagnosed", never knowing that they may have been diagnosed decades earlier, and that it should have been service connected from the start.

I am presently claiming my Lupus, but how many other of my comrades are being denied, because they didn't even know of their diagnosis? Previous RO, and BVA claims/cases show that they had, in their possession, the 1977 hospital records, and not one picked up the diagnosis. I try to let all the older Vets know that they can view their medical records, that they can order copies of their old medical records, and that they need to review them!