Initial File Dates And Effective Dates

[Vetsforvets]

Hello again everyone.

I filed nod for my sc effective date being wrong. I filed initial claim 4/10 and received a sc effective date of 3/11. My initial claim was denied (under dx c&p) and was granted sc during the appeal process. The effective date given was my dx date and not my initial file date.

So, which is the correct effective date?

[Berta]

"My appealed sc award letter stated that the examiner miss dx me."

It is unusual for VA to admit to something like that and that statement might be the key to getting a better EED.

Can you scan and attach the decision here, to include that part, their Reasons and Bases and the Evidence list they used?

Cover C file number, name, address prior to scanning it..

Edited July 21, 2015 by Berta

[Buck52]

I agree with everyone, and Ms berta has some good information about the C&P examiner miss DX you and VA actually admitted it.

...........Buck

[Berta]

Buck I think faulty C & P exams that are often overcome by IMOs from real doctors are a form of malpractice.

Then again those exams are not a basis at all for 1151 or FTCA claims, unless other things occurred during the exam that raise to that level....which is very usual.

If there was a documented data base of what C & P examiners state, compared to the findings of private doctors looking at the same veteran's medical records, maybe that data base would reveal that either the C & P examiners are not appropriate for opining on most disabilities, as they lack expertise in the field of the disability or if they are familar with the disability, , they are poorly trained in medicine, or just burned out, or what the real reason is, in many cases I am sure, they know,that since VA signs their paycheck, that VA wants them to deny as many claims as they can.

Oh, I forgot, there is a data base....it is the BVA web site....

it shows how many valid claims, without a strong IMO, will continue to be on the hamster wheel.

[zeelarry]

I am going through the same problem. My initial filing for Diabetes was back in 2007, denied, appeal, remand [3 times] then VBA finally obtained their own IMO. Their [VBA] IMO agreed with my IMO [Dr. Bash] and was finally granted in 2014. Was rated at 20%, filed a NOD immediately, and was granted 40%, but with an effective date of the NOD!?!?!?!? Filed Form 9 Appeal back in May 2015 which is still pending. I requested a face to face with DRO before Appeal goes to BVA. Heard nothing.

Anyway, here are a few references:

Title 38 → Chapter I → Part 3 → Subpart A → §3.156

§3.156 New and material evidence.

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501)

38 CFR Effective Dates §3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (Authority: 38 U.S.C. 5110(a))

(h) Difference of opinion (§3.105). (1) As to decisions not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable.

E X T R A C T E D

Citation Nr: 0918324    

Decision Date: 05/15/09    Archive Date: 05/21/09

DOCKET NO.  07-10 359

 In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction     between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assign- ment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at 

different times over the life of the claim-a practice known as "staged rating."

Edited July 21, 2015 by zeelarry

[Buck52]

This will help the veteran to establish an EED and also I agree an IMO/IME with a specialized Dr with more in dept medical rational the VA raters and DRO's will usually opt for the Specialized Dr IMO/IME.

Years ago I had to get a Specialized Dr IME to oppose what a VA Dr Opine with just his expert opinion & this specialized Dr never mention anything about the VA Dr, he just reported his medical impression using the VA criteria

Just like Ms Carlie mention before , if a veteran has to get out and pick up aluminum cans and sell to pay for his/her IME/IMO its worth his/her time to get the $$ anyway they can...> to get OFF that dreaded old hamster wheel.

jmo

.................Buck

[Vetsforvets]

An excerpt of sc award letter:

VAMC treatment records show you sought initial treatment 3/11, and that you underwent a mental health screening with reported trauma exposure when serving in Iraq. Although you met some criteria consistent with PTSD (i.E PTSD screening was positive),the examiner said your symptomatology is more indicative of major depressive disorder. Review of subsequent mental health documents showed continued treatment for anxiety and depressive disorder.

In support of your claim, you underwent a VA examination 4/11. Upon completion of the evaluation, the examiner concluded that PTSD was not found.

In support of your appeal, we requested and you underwent a second VA examination. Per VA examination concluded on 6/14, a diagnosis for PTSD is confirmed. You were last seen 3/14 for med management. He goes on to state you have described symptoms consistent with PTSD throughout VA treatment records despite the primary diagnosis being depressive disorder. I initially sought treatment when I originally filed my claim 4/10. I didn't receive evaluation and treatment until a year after filing initial claim.