Effective date question

[Draw808]

Say I separated January 1, 2015 with in service complaints about back problems no diagnosis.

Filed a disability claim on June 1, 2016. 

Had C&P exam March 17, 2017 and VA me with discogenic disease.

VA service connected me on the date I was diagnosed.

Should it be date the claim was filed or is it correct with the date it was diagnosed? 

[Tbird]

You should be service connected back to the date you file the claim, however you didn't file a claim for discogenic disease because nobody diagnosed you with it till you went to your c and p exam, so not sure on that one. Hope some others can jump in and lay some knowledge on you.

There are quite a few cases at BVA dealing with discogenic disease Use this link to review the BVA decisions and see if you can gleam any knowledge from those.

[Buck52]

I agree with Ms Tbird

The first claim of the first disability should go back to the first date filed (June 1-2015.

At a C&P on date 3-17-2017  the Examiner diagnosed  the discogenic disease goes for this  date 3 -17-2017. ....>(if ratable & s.c.? which I 'm not sure of?

[broncovet]

The general rule for effective dates is the later of the claim date (the date VA received your claim) or the "facts found", with several exceptions.  By "facts found" they mean the date the doctor says you were disabled.  Some doctors do a diagnosis "by history", that is, if you have already been diagnosed by another doc, your doctor may not have to do that again.  You shot yourself in the foot by not applying within a year of service, as that would give you an effective date the day after you exited from service.  This is a rare example of a time where you can get an effective date EARLIER than the date you applied.  

[Rougetet]

Draw808 - Here is a more radical answer to your question about effective dates and diagnosis, but you should consider what it says and then determine if you want to provide this type of argument in a NOD (if within the one year denial period or in an argument if your SOC/Appeal is still ongoing) - especially notice the bolded part below.  If you disagree with what I say below, treat it as my opinion and move on or place your own contradicting opinion here if you desire; I will not debate this opinion since I want to avoid the possibility of a real "flame war" in this thread and we should just agree to disagree in that case:

I believe that rating adjudicators at the VAROs have often misconstrued what both the law (Title 38) and their regulation (38 CFR) indicate for determining an effective date for a disability compensation claim.

 

The law, Title 38 § 5110(a) states that effective dates should be:

“Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”

 

VA’s implementing guidelines for the law excerpt provided above, 38 CFR § 3.400, states that effective dates should be:

“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.”

 

VA guidelines have chosen to have the words “date entitlement arose” to be the same as the law’s words “fixed in accordance with the facts found”.  VA guidelines CAN NOT arbitrarily change the law enacted by Congress and therefore each rater evaluation done for determining the date entitlement arose must essentially meet the criteria of being “fixed in accordance with the facts found”.

 

In disability compensation claims in order to find the date entitlement arose AND the date fixed in accordance with the facts found, it is necessary to determine the date of onset of the disability in order to meet the spirit and intent of both the law and regulation.  This date of onset IS the date true entitlement arose (regardless of whether a claim is ever filed for this disability).  For ALL disability compensation claims that have been determined to be directly service-connected, that date of onset happened sometime during the veteran’s service.  Since a claim for disability compensation through the VA can not be completed prior to a veteran’s discharge, separation or retirement, that essentially makes the date of entitlement the day after a veteran’s discharge, separation or retirement in ALL claims which are determined to be directly service-connected.  Therefore, for those claims determined to be directly service-connected, the effective date for award MUST be the date (or up to one year earlier under certain subparagraphs of 38 CFR § 3.400) the VA receives the claim (if claim initially filed AFTER a veteran’s discharge, separation or retirement – some claims are initiated immediately prior to exiting military service for consideration and those claims effective date becomes the day after discharge, separation or retirement).

 

Although the effective date of award for direct service-connection claims must initially be the date VA receives the claim (or up to one year earlier under certain subparagraphs of 38 CFR § 3.400), there are certain cases where it becomes important to establish a staged rating during the claim because the symptomology indicates different levels of disability corresponding to different rating levels in VA’s Schedule of Rating Disabilities (38 CFR, Part IV) that have occurred from entitlement date to claim decision date.  In all those cases it is important to determine the date of onset where the disability has worsened in order to establish this staged rating.

 

For claims which are determined to be secondarily related to an existing service-connected disability, again it is important to determine the date of secondary related disability onset to determine the date of entitlement for this secondarily related disability.  The entitlement date in this case will often be related to the first evidence of a symptomology shown in medical/administrative records or layman statements/affidavits.  Again, the effective date will most likely be the date VA receives the claim provided that any symptomology occurred prior to this claim receipt date.

 

I have noticed or heard from many veterans that VA rating adjudicators often use the date of diagnosis of a disability to determine effective dates for awards based upon that being the date of entitlement.  Although a diagnosis is often necessary to confirm the existence of a disability, it is not the date of onset of a disability which would be needed to determine the true date of entitlement; this diagnosis almost always occurs long after the disability’s onset.  To think otherwise would mean that something happened within the exam that caused the disability – prior to the exam diagnosis there was no disability with this way of thinking.  Besides being ludicrous, this may open up the VA to potential additional disabilities incurred in an “1151 claim” under Title 38 U.S.C. section 1151 since they evidently did something during the exam to cause the disability.

 

Consideration should also be given as to how this needs to be applied to claims that are other than standard disability compensation claims (e.g. presumptive claims, Nehmer claims, pension et al.).  As a minimum, it should have applicability also to claims for Total Disability due to Individual Employability (TDIU), 38 CFR § 4.16, since date of unemployability onset needs to be determined there also as date of entitlement, and the date of exam that indicates there is unemployability should not be used as the sole determinant for date of entitlement.

[MikeHunt]

Date of claim, unless there's a whole lotta something missing.

Are you saying they used C&P exam date as effective date???

[Richard Brooks]

On 11/26/2017 at 7:44 AM, Rougetet said:

subparagraphs of 38 CFR § 3.400),