Earlier Effective Date

[Charleese]

Hi all,

My husband spoke with his DAV representative on yesterday concerning an Earlier Effective Date for his injury that occurred in July 2008 when he had a fall which resulted in a spinal cord injury. He was operated on August 16, 2008 and stayed in hospital for 40 days. In October 2008 he had occupational and physical therapy up until April 30 2009. He filed for IU and spinal cord injury in May of 2009. BVA granted him IU and for his spinal cord injury for claimed filed in May 2009 instead of July 2008. He could not file any earlier because he had to wait until all his occupational and physical therapy was over with so he would know what to file for.

Yesterday his DAV told him to appeal RO decision by having a video conference with BVA because he said that would be the earliest of all the other appeals.

My question is (1) do you think they will grant him an earlier effective date of July 2008; (2) have anyone had a video conference with BVA and if so what are some of the questions that they ask; (3) is video conferencing the earliest for appeals.

Thanks in advance for your replies!

[broncovet]

The Veteran is required to file for benefits on a claim form designated by the Secretary. This is called a "formal claim".

However, it is not necessary for the Veteran to file a "formal claim" for each condition. We dont file a formal claim for PTSD, another for DM2, another for scars. One form will suffice.

The Veteran can make subsequent claims, with each referring to the formal claim, that is, a claim for increase.

An informal claim can establish the effective date only if the "formal" claim has been filed. That is, the informal claim regs are about claims for increase.

Now, if a Veteran sends an informal claim to the Secretary,(without having already showed his intent by filing a formal claim for benefits) or his RO, the Secretary is supposed to send the Veteran the required form, and accept the informal claim if the Veteran sends in the formal claim within a year. If the Secretary fails to do this, the Veteran may be able to argue that informal claim establishes his effective date, should the Veteran be able to document this. Still, in each case the Veteran must file the formal claim.

The informal claim for increase needs to have 3 things:

1. It must be in writing. Calling your RO and telling them you want to apply for x benefit wont work, unless they write it down and you can lay your hands on that document.

2. It must "show intent" to apply for one or more benefits administered by the VA. It isnt enough to go to a VA doc for treatment, the Veteran mush "show intent" to be seeking benefits, not necessarily treatment. If you go to the VA doc, he is going to assume you are seeking treatment, not benefits, unless you indicate otherwise.

3. The Veteran must "specify the benefit sought".

Edited January 18, 2012 by broncovet

[jbasser]

He was already SC 30%disabling for status post fracture left tibia tubercle with osteoarthritic changes and chronic chondromalacia; 30% disabling for recurrent subluxation of the left knee and 10% scarring of left knee giving him a rating of 60%. On June 8, 2011 he was granted TDIU effective May 2009 and decision stated the following: 20% for residuals of cervical myelopathy, Brown-Sequard Syndrome, with quadriparesis, status post anterior discectomy, fusion, and plating at C3-C4 effective May 2009; 10% Right Knee condition associated with recurrent subluxation, left knee effective May 2007; and 10% Left Thigh Atrophy associated with status post fracture left tibia tubercle with osteoarthritic changes and chronic chondromalacia. It also states: "Your overall or combined rating is 70% effective May 2007 and then increased to 80% effective May 2009, however you are being paid at the 100% rate because of IU".

As stated before he gave VA PCP his medical records in October 2008 (he got out of hospital the end of September 2008), and VA PCP entered hospital record information in VA computer system. He had a C&P exam in November 2008 and examiner stated in exam under assessment in part: "and he has a recent fall that is at least as likely as not the result of the weakness and locking of the left knee. This fall was significant, as it resulted in a herniated cervical disc requiring fusion and discectomy as stated above. As a result, he has moderate to severe functional loss and limitations". Because his VA PCP questioning him about 2008 fall and with VA PCP and C&P examiner questioning and writing C&P examination reports about it led my husband to believe that his claim was filed (informal/inferred). We are saying that his earlier effective date should be August 15,2008 whenhe was admitted in hospital (he was operated on August 16,2008) and not May 2009 when he filed claim because he thought and believed that when he gave his VA PCP hospital medical records of fall that constituted a claim.

After examination in November 2008 he was waiting for a 100% rating for convalesence for 9 months of physical & occupational therapy and hospitalization. Imagine his surprise when they told him in May 2009 that no claim had been filed and that he had to file one. His VA PCP nor C&P examiner never told him that their examinations and write ups of his 2008 injury didn"t constitute as a claim.

I hope this clears up some of your questions.

Did he tell the VA at that time he was going to file a claim. If you have Proof then you may have an informal claim.

J

[carlie]

As stated before he gave VA PCP his medical records in October 2008 (he got out of hospital the end of September 2008), and VA PCP entered hospital record information in VA computer system.

The above does not equate to filing a claim or show intent to file a claim for a benefit.

Editing to add - the VA PCP can only enter the medical records into the VAMC side of the record.

Doing this does not enter anything into the VBA / VARO system.

These two are completely separate.

He had a C&P exam in November 2008 and examiner stated in exam under assessment in part: "and he has a recent fall that is at least as likely as not the result of the weakness and locking of the left knee. This fall was significant, as it resulted in a herniated cervical disc requiring fusion and discectomy as stated above. As a result, he has moderate to severe functional loss and limitations".

The above from the C&P MIGHT be applicable for an informal claim, again MIGHT.

Because his VA PCP questioning him about 2008 fall and with VA PCP and C&P examiner questioning and writing C&P examination reports about it led my husband to believe that his claim was filed (informal/inferred).

He has a good history of filing claims for VBA benefits, so I have no idea WHY the scenario above would leed him

to believe that any claim has been filed whether informal or inferred. What would make him feel this way ?

We are saying that his earlier effective date should be August 15,2008 whenhe was admitted in hospital (he was operated on August 16,2008) and not May 2009 when he filed claim because he thought and believed that when he gave his VA PCP hospital medical records of fall that constituted a claim.

Just giving his VA PCP medical records of fall does not show any intent to file a claim or show the

benefit sought.

His VA PCP nor C&P examiner never told him that their examinations and write ups of his 2008 injury didn"t constitute as a claim.

Editing to add: They have no responsibility or authority to tell / advise patients/claimants of VARO/VBA

policies and procedures - they are not trained nor do they have the authority to do so.

The job and function of his VA PCP - is to provide medical care. The job and function of a C&P examiner

is to follow the instruction of the decision maker that requested the C&P examination.

It is not within their responsibilities to discuss what equates to filing a claim for benefits.

JMHO

carlie

http://www.va.gov/vetapp11/Files3/1127457.txt

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of TDIU is inferred in increased rating claims where the Veteran claims his disability affects his employability. The Board finds that the Veteran has indicated occupational impairment due to his service connected disabilities throughout this appeal. Accordingly, an inferred claim is applicable in accordance with Rice. Id. The issue of TDIU is appropriately indicated above. It is noted that all of his service-connected disabilities are currently on appeal.

http://www.va.gov/vetapp11/Files3/1124541.txt

II. Factual Background and Legal Analysis

The Veteran seeks an earlier effective date for the grant of service connection for tinnitus. He contends that March or April 1971 is the more appropriate date for his award.

The record reflects that, on January 25, 2005, the RO received the Veteran's formal claim of entitlement to service connection for tinnitus. This represents the earliest formal claim of record for tinnitus.

In the September 2006 rating decision, service connection for tinnitus was granted, effective January 25, 2005. The Veteran contends that he is entitled to an effective date earlier than January 25, 2005 for this award of service connection for tinnitus.

Specifically, the Veteran asserts that an earlier effective date for the grant of service connection for tinnitus is warranted because, in April 1971, he filed a claim for service connection for his bilateral hearing loss. He believes that a claim for service connection for tinnitus should have been inferred and raised by VA when he filed his April 1971 claim for service connection for bilateral hearing loss. According to the Veteran, "VA did not connect the dots between the claimed hearing loss and tinnitus" (see April 2008 substantive appeal).

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155.

In the present case, the Veteran separated from the active military service in March 1971. The Veteran does not contend that he submitted a formal claim for service connection for tinnitus within one year of his discharge from the active military service. Instead, the Veteran contends that there was (or should have been) an inferred claim for service connection for tinnitus within one year of his discharge from the active military service.

The record reflects that, in April 1971, the Veteran submitted a formal claim for service connection for bilateral hearing loss that is not referable to his having tinnitus. However, the Veteran asserts that the RO should have inferred a claim for service connection for tinnitus from his claim and/or from his July 1971 VA audiological examination for his bilateral hearing loss claim. However, the April 1971 formal claim is not referable to tinnitus, although the July 1971 VA audiological examination report indicates that he had constant tinnitus in both ears.

Significantly, however, the first evidence of an intention by the Veteran to file a claim for service connection for tinnitus is documented in his formal claim that was not received by the RO until January 25, 2005.

In this regard, the Board observes that it is well-settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing); see also King v. Shinseki, 23 Vet. App. 464, 469 (2010).

Here, the RO granted service connection and assigned a 10 percent disability evaluation, effective January 25, 2005, the date of receipt of the Veteran's original claim for service connection for tinnitus. See 38 C.F.R. § 3.155. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, even though the July 1971 VA examination report reflects the Veteran's complaint of constant tinnitus, because he did not file a formal or informal claim for service connection for tinnitus, prior to January 25, 2005, VA is precluded, as a matter of law, from granting an effective date for service connection prior to January 25, 2005. As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.

Although the Board is sympathetic to his claim, because the Veteran did not submit a claim, either formal or informal, for service connection for tinnitus, prior to January 25, 2005, the Board is without the authority to grant his claim on an equitable basis, and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

ORDER

An effective date earlier than January 25, 2005 for the grant of service connection for tinnitus is denied.

[broncovet]

Since he was already service connected, an informal claim can be established by a doctor visit:

See. 38 CFR 3.157, which states:

http://law.justia.com/cfr/title38/38-1.0.1.1.4.1.58.66.html

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

(Authority: 38 U.S.C. 5110(a))

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

(Authority: 38 U.S.C. 501)

[carlie]

3.157 is the reason I posted,

"The above from the C&P MIGHT be applicable for an informal claim, again MIGHT."

The reason I feel it MIGHT help get an EED is in reading and consideration of the entire reg.

There are some gray areas in this situation.

In all honesty - I don't know how hard I would push just to garner the amount that might be due.

Sometimes when the claimant is insistant on pushing too much - the VBA starts pushing back

JMHO

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General.

Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later.

A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement.

Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

(Authority: 38 U.S.C. 5110(a))

(b) Claim.

Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services.

The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted.

The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

(Authority: 38 U.S.C. 501)

(2) Evidence from a private physician or layman.

The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.

(3) State and other institutions.

When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (b)(1) of this section). These records must be authenticated by an appropriate official of the institution.

Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.

[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24,

[Quint7]

I did a video hearing/conference for an earlier effective date with the BVA. They do not ask questions. YOU and YOUR REP are expected to lay out your case for why you should be approved. The guy in DC (I assume) basically sat there looking at us as my rep fumbled and mumbled along at first with his whole being 'gracious for this opportunity to speak' suckhole crap that he has done at DRO hearings and then trying to explain my case until I just cut him off and explained it myself.

The judge sat there looking at us, not writing anything down and only asked me to clarify a couple of things. It was not a question and answer period type of thing. The same goes for the 1st in person DRO hearing I had in which the DRO was very defensive and confrontational (I won). The 2nd in person DRO hearing, which was about this same EED that is at BVA, was more of a discussion as the DRO had properly prepared for the hearing by reviewing my claim and discussed it with my rep beforehand. Even though he came across as 99% sure i would win, when I got the decision it was denied on what was a lame technicality in my eyes. The appeal to BVA was to make VA go back to the claim and review it from page one as it was filed immediately after discharge. All previous ratings and hearings skipped over the original reason for assigning the rating they did (0% for 'failure to appear') and went to why that was a proper rating, instead of looking at the medical evidence that was on hand upon my discharge and deciding if that evidence alone was sufficient to rate a minimum of 10%, if I showed up for the C&P or not as regulations say. They kept defaulting back to 'you don't show for a C&P, you MUST get 0% if it is found to be service connected because we couldn't examine you' which is not how it is supposed to go. The example I used was 'a guy loses an finger, he gets out on a regular discharge, files and misses the C&P due to a VA clerical error (as was my case for missing the C&P, I'm not missing a finger), does he get rated at 0%?' No. It is in his records that he lost a finger and there are minimum ratings that apply to that that MUST be granted as a starting point based solely off of his military medical files. That is exactly what VA is SUPPOSED to do. Instead, they save time and money by assigning a 0% and it is then on the vet to fight it.

My claim has been at the BVA since April 2011. My 'status' since July 2011 is 'with VSO' which apparently means with my rep (local? state? national? I have no idea) who is supposedly preparing a brief for BVA.

On a similar situation, I filed for 2 issues that are considered to be automatically service connected due to me being a Gulf Vet. I filed claims for them requesting the effective date to be the dates I first sought treatment from VA as I have read on here that getting treatment can be considered an informal claim and that since both are automatically going to be service connected as part of the list of presumptive illnesses for Gulf vets, the effective date is the date I asked VA for treatment. Those claims are at the VARO in Buffalo and are 'delayed due to us having to work off of a temporary file as your file is at the BVA'. That was the IRIS response as of last week. I filed those claims in Sept. I think and until I contacted IRIS 3 weeks ago I hadn't even received the usual 'we have received your claim and are working on it' letter which finally arrived last week.

I don't know if that will help, but it's my experience with video and in person hearings.

Edited January 19, 2012 by Quint7