Vas Knowledge Of Disease Vs. Claim Date

[Guest jangrin]

If there is evidence in a vets medical file regarding DMII and the VA didn't do anything about it. And then a few years later the VA treats and diagnoses the vet, and the vet then files a claim for the DMII. Will the compensation be from the date of the claim or from the date the VA first knew about the DMII?

I suspect it is from the actual file date but was curious. Thanks for your imput.

Jangrin

[Pete53]

The best the Vet could hope for in my opinion would be the filing date if awarded.

[Guest jstacy]

Jan, You need to talk to Berta, You gals are having a lot in common for the VA failed to do the same thing to her husband and she ripped them a new one. ( I could see Berta doing that) What a spunky lady. Remember this: 1151 claim. If t he VA diagnosed a condition of the evidence was in the record and not diagnosed, Then you have a good case. ALso regarding your last question? I found the quote below. It may or may not be of any relevance but I hope it helps.

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

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(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 (:D(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, 1995

Edited September 5, 2006 by jstacy

[john999]

Istacy

If at a VA medical examination the VA discovers you have a condition that very well might be secondary to an accepted claim does this not constitute an inferred claim for service connection? For instance, if you have DMII and you have a VA eye exam and the doctor discovers you have one of the well known DMII related vision problems should not this be recognized as an inferred claim. I have never know the VA to ever make that leap and to rarely tell the veteran that he/she has a more likely than not service connected secondary condition. If the vet does not put two and two together the VA just does nothing. From what I have read the VA has a responsibility to recognize and act on inferred claims but never does it.

So the patient has to become an expert in their own disability and its likely consequences. It seems to me this is a basis of a Section 1151 claim.

[Berta]

If there is evidence in a vets medical file regarding DMII and the VA didn't do anything about it. And then a few years later the VA treats and diagnoses the vet, and the vet then files a claim for the DMII. Will the compensation be from the date of the claim or from the date the VA first knew about the DMII?

I suspect it is from the actual file date but was curious. Thanks for your imput.

Jangrin

Jangrin-if the VA knows of a disability and does not diagnose or treat it-they have committed malpractice-

Even if they diagnose it in the future-the veteran could have sustained further disability because of their past negligence.

Regular Claims are awarded most usually back to the date of filing the claim-

Section 1151 claims involve other factors-when did they become negligent? and what additional disability did they cause? The additional disability has to be rated and awarded "as if" service connected.

Any one who feels that VA was negligent in their care to the extent that it caused more disability should get a good IMO to see if malpractice occurred.

My case is example- Rod died of a sudden heart attack, 2 years before-the VA cardiologist had told me "nothing" was wrong with his heart-it was a shock and I couldn't understand why he died.

In his medical records I found that 6 years before his death he had a heart attack at the VA- they misdiagnosed this ,he had numerous transcient strokes-they misdiagnosed these, and a major CVA in 1992-they misdiagnosed that too until I threathened them to give him a CT scan-

They then treated the stroke which had already disabled him catatrophically and sent him home with minimal meds and appointment 8 months away.

After he died I re-open his Sec 1151 claim because he was starting to question his care- especially for PTSD-

but in his 1151 he said he feared if he didnt get proper PTSD therapy he would have another stroke or even die to heart disease, since the PTSD was not properly treated.(documented fact)

He ended it by predicting his own death at VA hands.It is a chilling statement he made-

But he dictated it and I typed what he said.

6 months later he died-the 1151 claim was at the rating board.

I re-opened this claim when he died and after getting the files and looking through the med recs-

They were handwritten in those days- it took time-

I realised he was right-they killed him. I sued them and won.But I had no IMO.

Dont be like me- unless you love to study Cardiology- a good IMO helps claims like this considerably-

In 2003 my daughter urged me to file an AO claim due to diabetes-

Rod had never been diagnosed with diabetes-I didnt get her point-

her point was his conditions at death were consistent with an untreated diabetic-and she reminded me that the VA had already admitted they misdiagnosed his heart disease and strokes so "more than likely" they screwed up on the actual reason for these conditions- I pulled out the med recs-looked at them for evidence of the diabetes causing the heart disease and strokes- and of course-she was right-it was right there-

In 1992 the VA medical cover up of the diabetes occurred-but I could see it-

prior to that the docs were too stupid to cover their tracks-

I filed the AO claim,studied all I could on diabetes mellitus, contacted Dr. Bash, sent him the med recs, and then knew even before Dr. Bash called me back in Nov 2004- that he had concurred with my findings-

The VA has 3 IMOs that concur with my claim and support that the veteran-who they killed by malpractice- was an AO vet with DMII contributing to death.

Any one of you could be in Rod's shoes- he was smart but there is a lot of his VA care we didnt question-

after all they were doctors-we weren't---

His Sec 1151 claim-which he dictated with 100% SC PTSD and severe CVA brain damage-

was proven as to his charge that they would cause his death and then the vet died before he even knew he was right-

If you have an issue that you feel involved misdiagnose or negligence in any way-on VA's part-get an IMO and then -you will know for sure-

Hopefully the care would be found to be medically sound-

otherwise you can file Sec 1151 and also sue them.

Edited September 5, 2006 by Berta

[Guest jangrin]

I'm just not sure of how strong this is. I was looking at my husbands records getting them organized for our move. I still have not gotton all his SMRs but we have requested a copy of his cfile.

In the copies of records we have received from the local VAMC there was a hand written tx note by the doctor who was seeing him. At the top of the note it says negative for DM. (probably where the nurse makes notations.) Down toward the middle of the paper it shows positive for DM. This was in 2002 and nothing was done about it. No meds, tests.

My husband was then diagnosed with DM (officially)about Oct 2005.

Did not know about filing a claim for AO until Jan/Feb 2006.

jangrin

[Guest jstacy]

Jan, go get copies of his blood work in 2002, Look at the glucose levels. You can put this together. If they are high on subsequent blood tests then you will have a better idea of what to do.