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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Jim 501st

Earlier Effective Date

Question

I read the post on EED, and thought I would ask a question on the subject.

I am currently rated 100% Meniere's

50% ptsd

10% each knee with bilateral

I am attaching a portion of a letter I sent to my lawyer yesterday and would like to know if you Guys think it has legs.

We are anxiously awaiting our case to get back to the BVA for a decision on additional 100% or IU in reference to the three c & p s I had performed at the -------VAMC for hearing, general physical and PTSD. I know my C file can be only be at one place at a time and it is being held at the ---------RO awaiting DRO review on SAH claim. Do you have any idea when this DRO review may transpire? Our intentions are to spend the winter in Florida from January to April.

When my case goes back to the BVA, I would like you to consider the facts below and see if you think they have any merits. This is concerning SMC's L 1/2 that your firm helped me get. They backpayed me to the date that we filed for SMC; however, if we go back to the C & P for Menieres Disease performed on January 7, 2008, the C & P doctor named ------------- admitted that my C & P report under Physical Exam portion that there are signs of a staggering gait or imbalance? Answer Yes.

Other Findings:

Veteran has difficulty getting out of chair. He has a noticeable gait disturbance and leans toward the left. His wife was with him today.

Summary of All Effects on Occupational and Daily Activities:

Diagnosis: Menieres Disease

Effects of the problem on Occupational Activities: Dizziness, general occupational effect: not employed, receiving SS disability for back condition.

Are there effects of the problem on usual daily activities: yes

Describe others: This veteran has a gait problem that would prevent him from performing many activities of daily living without assistance.

At the end of her C & P report, the doctor denied service connection for all the above. The BVA judge at our hearing service connected the Menieres Disease and I was

Page Two

--------------

backpayed 100% to the date that I filed for Menieres Disease. We then filed for SMC and was assigned L 1/2 and backdated to the date that I filed. After reviewing Dr. ------------------C & P report, she clearly states in her physical exam portion that I needed assistance for daily living at that time.

I understand you normally receive SMC's from the date you file for them; however, in this case, I wonder if a presumption of inferred claim should not be in effect and backdated to at least the date of this C & P, January 7, 2008, or the date in 2007 that the Regional Office awarded me 100% for Menieres Disease, probably based on these C & P results.

I would appreciate the BVA Judge being made aware of all the facts mentioned above if you think they have merit.

-----------------

DOB: 1/15/43

File No. ----------------------

My point is I could not file for smc's until the BVA Judge service connected it and the RO approved my claim at 100%. If the c&p Dr had service connected at the time I would have filed for smc's. I did apply for and was awarded aide and attendance as soon as I got the 100% award.

Jim 501st

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Thank you for the update, that the IU issue is for historical rating purposes.

am a bit confused so please bear with me ...

I understand that you are being compensated at the SMC L 1/2 level, correct?

If so, why is Individual Unemployabilty an issue? If you are at 100% for another condition Meniere's Disease?), the issue of IU is moot (unless there is something of a historical nature that I'm unaware of).

On what basis are you applying for an additional 100%? You seem to have a good handle on SMC so you probably already know this: an additional, independent 100% grants a step increase in SMC, or perhaps in your case to SMC S 1/2 (if you aren't pursuing an increase for PTSD) from 38 CFR 3.350(f)(4) http://www.benefits....ART3/S3_350.DOC

As I said before my case is a bit confusing:

The BVA Judge service connected Meniere's and sent it back to the RO to rate. Due to the c&p exam, they assigned me 100% back dated to the date I filed, which was the middle of 2007.

She also remand several issues Including left knee which was granted, Also IU. The ask a specific question. ( Was this Veteran unable to work prior to 2007) I had three c&p's on the same day. One for hearing which the c&P DR. said my hearing alone made me iu,. This is insignificant as it only took me back to the same date I was granted P&T. I'll skip to the PTSD The Shrink who did this C&P stated I was iu due solely on ptsd and gave me a gaf of 40. He also made reference to another C&P I had in 2005 for ptsd where that Dr said I was unable to work due solely to ptsd. ( the RO low balled me and gave me 50% at that time). This claim was filed in 2004 which if granted the VA would have to pay me the difference of 50% to 100% from 2004 to 2007 when they gave me 100% for meniere's, but more important to me it would reset the 10 year clock back to 2004 for DIC purposes.

Just for the record the third Md also said I was IU prior to 2007 for all the medical conditions conbinded.

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Did you appeal the 2004 claim decision? How did the VA decide to ignore your C&P exam where the doctor said you were unemployable? They rated you 50% instead of IU. Did the VA infer a claim for IU and then deny it? The C&P doctor's statement that you were unemployable should have triggered a TDIU claim. What was the evidence the VA used to rebutt the C&P that you were unemployable?

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I'll skip to the PTSD The Shrink who did this C&P stated I was iu due solely on ptsd and gave me a gaf of 40. He also made reference to another C&P I had in 2005 for ptsd where that Dr said I was unable to work due solely to ptsd. ( the RO low balled me and gave me 50% at that time).

Did the C&P also address TOTAL SOCIAL IMPAIRMENT ?

That would also need to be factored into the adjudication.

JMHO

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If you are seeking an EED on SMC, your posting indicates the doc knew about your SMC earlier. If I understand this correctly, SMC is supposed to be inferred automatically, when the medical evidence supports it.

As you probably know, the effective date is the later of the date applied or the facts found (which usually means the doc said you are disabled).

The "date of application" can be from an informal claim. The date of exam or hospital entrance can establish an informal claim provided the following 3 criteria are met:

1. It has to be in writing.

2. It has to "specify the benefit sought".

3. The Veteran needs to "show intent" to apply for one or more VA benefits.

It is not enough that you go to a VA doc...many Veterans are "seeking TREATMENT" for their conditions, not necessarily seeking "benefits". If you go to the doc, the VA does not assume you are seeking benefits.

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Did the C&P also address TOTAL SOCIAL IMPAIRMENT ?

That would also need to be factored into the adjudication.

JMHO

The exact wording on the C&P are as follows as I said earlier the dr gave me a gaf of 40 and I might add the c & p doctor was board certified by American Board of Psychiatric and Neurology. The gaf is reflective of severity of Axis 1 diagnosis which is severe. The veterans condition does affect him severely in a negative manner. As far as ability to secure or maintain gainful employment prior to 1/22/2007. The Veteran is competent for VA benefit purposes. The veteran is to continue treatment with VA Mental Health Clinic.

If you are seeking an EED on SMC, your posting indicates the doc knew about your SMC earlier. If I understand this correctly, SMC is supposed to be inferred automatically, when the medical evidence supports it.

As you probably know, the effective date is the later of the date applied or the facts found (which usually means the doc said you are disabled).

This is a quote from the C & P doctor's statement under Summary of Effects on Occupational and Daily Activities:

Are there effects of the problem on usual daily activities: Yes

Describe others: This veteran has a gait problem and this would prevent him from performing many activities of daily living without assistance.

Remember I said earlier this same c & p doctor denied service connection which the BVA judge at a later date service connected. It was then sent back to the RO and I was awarded 100% from the c & p mentioned above with no mention of SMC.

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