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Claim From 1968


sixthscents

Question

I am interested in hearing everyones opinion on the possibility of submitting a claim for retro pay for a gunshot injury during combat in 1968. The veteran was treated by the VA since discharge for the injury, but never filed a claim for compensation until about 2 years ago. This was a serious injury, but the Veteran was unaware that he could even file, though he had been in the VA medical system since 1969 or so. The VA has readily admitted service connection (even though the lowballed the rating of course) and a NOD is ongoing for all the ratings, PTSD etc., but the initial gunshot wound and the 2 purple hearts for injuries sustained during that action (also along with the silver star with v device) leave little room for arguing service connection for the trauma to the foot.

I am unsure what route to take here. The VA obviously had a duty to tell the veteran that he could file for compensation, but until I became aware of the situation, he had no clue. So:

1. Where do I start...

2. What level do I start at..BVA or VARO

3. What specific cases or references might pertain to this?

4. What are the odds of success? i.e. retro pay...

I appreciate the help with this, the Vet has obviously left out in the cold for about 30+ years.... Our wonderful VA system....

Bob Smith

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Look at the 38 cfr 3.400 Effective dates. It states effective date is date of the claim or entititlement arose. If he did not file within 1 year separation for his GSW, There is no chance for retro.

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Because he didn't know he could file a claim won't hold any water - Sorry

this is in no way a CUE. File his claim ASAP and make sure to claim EVERY DISABILITY he may be entitled to.

Good luck,

carlie

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I found something interesting in M21-1, Part D - Informal Claims, that states the following:

a. Characteristics of an Informal Claim. Identify an informal claim by any of the following characteristics:

· any communication or action that shows an intent to apply for benefits under laws administered by the

Department of Veterans Affairs (VA)

· an original claim not filed on the prescribed form

· an unsigned application (except for those claims received via the Veterans On-Line Application (VONAPP))

· evidence of examination or hospitalization in a VA or uniformed services health care facility, or

· any communication regarding the death of the appellant in an appeal

-1 submitted to the United States Court of Appeals for Veterans Claims (CAVC), and

-2 furnished to the VA by CAVC.

Reference: For more information on communication regarding the death of an appellant, see De Landicho v. Brown, 7 Vet. App. 42 (1994).

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

Would the fact that the veteran was treated in a VA Hospital for a wound he suffered while active duty not constitute an informal claim? By the sound of the VA's procedures manual, it's up to them to identify this veteran's situation as an informal claim. Of course, we don't know what the manual said in 1969, but I suspect that whenever the current policy came into existence can be the effective date of the claim.

I think the argument would be worth a try. Otherwise, what does the statement above mean?

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Vicki,

That only shows the vet was seeking health care and would not hold water as far as seeking service connection.

Also I thought about trying 38 CFR 3.157, but I don't think he could use that one because no claim had been filed, awarded or denied prior to the VA health care received.

JMHO,

carlie

Edited by carlie (see edit history)
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Carlie, my understanding is that the veteran has already been granted service connection, it's the earlier effective date of service connection and retro pay he's seeking. The proximity of the veteran's treatment at the VA for injuries related to a GSW, compared to the date the veteran was wounded, was approximately one year, which should have clearly indicated to the VA that the situation qualified for recognition as an informal claim for service connection of that same injury. M21-1 says that this is the VA's responsibility whenever there's "evidence of examination or hospitalization in a VA or uniformed services health care facility." It appears that the VA also shared responsibility for recognizing a claim situation existed, although informal.

A look at the veteran's service medical records, and discussion of the history of this wound as found in his VA medical records so soon after his discharge, should document the service connection.

I guess I'm not understanding the difference between "seeking healthcare" vs. laying grounds to qualify for an informal claim. The nature and timing of the injury, as well as the treatment the veteran received for it from the VA and it's later being granted service connection, I think constitutes a good argument that the VA should have recognized it as an informal claim, with the effective date being the day after his discharge from the military (if within one year of discharge), or whenever he first sought care from the VA.

Please explain how that particular characteristic of an informal claim, "evidence of examination or hospitalization in a VA or uniformed services health care facility," doesn't apply to this veteran, because I'm still not seeing it. Thanks!

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Wow..good stuff..to clarify

The veteran has already been granted service connection for the gunshot wound to foot. He is being compensated for it, and I have filed numerous other claims and won such as PTSD etc. They lowballed the comp rates, buts thats under NOD. The gunshot wound was treated both in service and later by the VA with both systems performing numerous operations on the foot. The Veteran has been in the VA healthcare system since discharge. However he only recently filed for ocmpensation, with half his foot missing. Yeah its that obvious. He was injured in Vietnam, received 2 purple hearts and the silver star for his action during the campaigne when he was wounded.

I wonder about the informal though...I will look at it...thank you. Maybe, I hope because its such a blatant case, I mean half his foot is gone. No compensation until just a few months ago. It just makes me madder than heck.. I WANT the VA to have to backpay the guy. He deserves it. Unbelieveable system.

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Sixth, do you have an NOD in for the GSW for an earlier effective date?

My position on these issues is to take your best shot and file a claim for an earlier effective date to the VARO, citing the section I mentioned out of M21-1. I haven't researched the BVA or the CVA sites for this, but you might want to do so under "informal claim" and see what you get.

Missing part of his foot? That's blatant disregard of an implied/informal claim, and so soon after his discharge. I say go for it...

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M21-1MR -- Original Claims

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secb.doc

M21-1MR -- Informal Claims

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secd.doc

38 CFR

§3.155 Informal claims.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

© When a claim has been filed which meets the requirements of §3.151 or §3.152, an informal request for increase or reopening will be accepted as a claim.

[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]

18. Claims Based on Reports of Examination or Hospitalization, Continued

b. Identification of a Claim Evidence of examination or hospitalization in a VA or uniformed services health care facility is an informal claim for

• an increased evaluation of a condition that was previously service-connected (SC), or

• a reopened claim for pension that was previously denied because the disability was not permanently and totally disabling.

Note: A notice of hospitalization may not suffice as an informal claim if a veteran that is SC for one disability is hospitalized for a different disability for which service connection has not been granted.

Reference: For more information on uniformed services medical facilities, see

• M21-1MR, Part III, Subpart ii, 2.D.18.c, and

• M21-1MR, Part III, Subpart iii, 1.C (TBD) or M21-1, Part IV, Chapter 6.10 through 6.13.

c. Action to Take on Receipt of VA Form 21-8358 If a completed VA Form 21-8358 is received from a uniformed services hospital

• review it with the claims folder, and

• request hospital reports or other information on VA Form 21-8359, Information Re Veteran in Uniformed Services Hospital or Dispensary, if any of the following apply:

 a formal claim for pension or compensation is pending or has been allowed

 a formal claim for pension was denied because the disability was not permanently and totally disabling

 a formal claim for compensation was denied because the service-connected disability was not compensable in degree, or

 in the case of a retired member of a uniformed service, a formal claim for pension or compensation has been denied because of receipt of retirement pay.

21-8358 in the claims folder.

M21-1MR

18. Claims Based on Reports of Examination or Hospitalization, Continued

d. Establishing a Claim Per 38 CFR 3.400(o), the effective date of an increase in compensation can be the earliest date on which the evidence shows that an increase in disability has occurred, if a claim is received within one year of this date.

Follow the steps in the table below if the VA medical evidence shows treatment for

• an SC disability, or

• manifestations of the SC disability.

Step Action

1 Accept the date of admission for treatment for an SC disability as the date of claim for increased evaluation.

2 Establish and maintain control of the claim.

e. Accepting Evidence Follow the steps in the table below to accept evidence for a claim that

• specifies the benefit sought, and

• is received within one year of treatment.

Step Action

1 Accept evidence of examination or hospitalization at a VA or uniformed services health care facility as an informal claim.

2 Liberally interpret reasonable probability of a valid claim.

3 If there is the probability of a valid claim, refer the claim for development.

4 Establish and maintain control of the claim.

38 CFR

§ 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, 1995]

Edited by carlie (see edit history)
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The vet must identify the benefit sought inorder to be considered filing of a claim.

Now this DOES NOT mean the vet has to state - Muscle group BLAH BLAH BLAH,

Foot Drop, I have limited ROM etc...

To start a formal claim all the vet has to do is say I was injured and want to apply for all benefits I may be entitled to.

VBM 2003 - p. 561

merely seeking medical treatment at a VA medical center or a readjustment counseling center does not qualify as an informal claim for service connected disability compensation for the condition for which treatment was sought.

Seeking treatment, without doing or saying anything more, only indicates an intent to apply for treatment, and the only identified benefit sought is medical treatment.

See KL v. Brown, 5 Vet. App. 205,208 (1993);

Dunson v. Brown, 4 Vet. App. 327,329-30 (1993).

As far as the medical records or treatment go for EED, this would only pertain to an increase in the disability rating of a condition that has ALREADY been service connected or denied due to non compensable within 10 % and back then most claims that didn't meet at least 10 % were denied as NSC.

Of coarse this is only my opinion, don't shoot the messenger.

Even if you CUE for EED you can only go back to the date of the original claim,

but this is not a CUE situation for effective date. If it was lowballed when granted then that MAY be a CUE situation.

The only way I see you can get retro is through CUE, again this for EED purposes is not CUE as you state he did not file a claim for service connection back then.

The vets failure to file a claim IS IN NO WAY A CUE.

carlie

Edited by carlie (see edit history)
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