Effective date questioned

[Alpenliter]

I was recently awarded 100% disability, and the effective date went back to when I first took a stress test to evaluate my heart problems, 12 months earlier.  My question is: while looking at my EKG, both my cardiologist and my primary care provider commented that it showed that I had a heart attack as far back as 2013.  Should I file an appeal as to the effective date using the EKG that clearly states " Inferior infarct (cited on or before 10-May-2013)"?  I don't want to appear greedy, or "rock the boat", but don't want to walk away from money on the table if it's there. Thanking you in advance for any help on this.

[Alpenliter]

Just got the lowdown on the 1151.  Don't think it applies to me though.  I did get a couple of golf ball sized brain tumors removed about ten years back and they nicked a nerve leaving the left side of my face numb.  The VA outsourced the operation to a big famous hospital and paid for it all so I didn't complain.  Probably should have.

[broncovet]

Its rather rare that you can get an effective date prior to the date you filed.  The regulations state that the effective date is the later of the date filed or "facts found", that is, the date the doctor said you had the disease.  

There are only a few exceptions that allow an earlier date than the date of claim:

1.  If you filed within 12 months of your exit from service, then you can go back to the date of exit from service.  

2.  If this is a "presumptive" especially under Nehmer.  Chris Attig explains effective dates for Nehmer, here:

https://www.veteranslawblog.org/nehmer-effective-date/

[Berta]

Section 1151 claims  can provide an earlier EED  and additional comp, as my reply shows.

But that depends on many factors,as Broncovet stated.

You had an ischemic heart attack in 2013 that went untreated ( by VA I assume) and then that led to the major disabling IHD diagnosis  you had in 2016.

If they had properly diagniosed and treated you in 2013 for ischemic heart disease, obviously you would not be so disabled by it now.

"Failure to diagnose and treat" is how I won all of my 1151 claims.

But I am glad you are happy with the rating you have now.

I have no idea how you could appeal the EED without  raising the 1151 issue . Others will help- we ALL need to understand 38 USC 1151.

 

 

 

 

 

 

 

Edited March 23, 2018 by Berta

[broncovet]

Yes, I agree with Berta.  I dont see how you can get an effective date earlier than the date you applied, unless you meet at least one of the criteria outlined above.  Its not enough to "just" be diagnosed with the disorder, and to meet the Caluza elements, you still have to show an "intent" to apply for benefits.  They dont award them until/unless you apply.  There used to be "informal" and "inferred" claims, but much of that has been done away with the new requirements that benefits must be sought on the applicable form.  Still, those old informal claims still apply to older claims, so if you can document some type of "informal" claim, you may get there.  

    You see, the VA had a long form where you wrote down everything to apply.  You did not have to repeat that for each condition, such as PTSD, knee issues, etc.  You filled out "one" long application and then an "informal claim" for each of the issues.  As long as you had the one long application (formal claim) filled out, it need not be repeated for each issue, but you still have to demonstrate "an intent to file" for that issue.  

     The old informal claim criteria used to be:

1.  It had to be "in writing"..you cant just say, "oh, I applied for PTSD, but they never wrote it down."  I think that means if you went to your VA doc and told him you wanted treatment AND disability compensation for your (knee issues), then you would meet the criteria for an informal claim provided you met all 3 criteria.  

2.  In some cases, your doctor can document an informal claim  FOR INCREASE, not an initial claim.  An "increase" is any rating above the one you have now.  

3.  You had to "specify the benefit sought".  

      If you had in your file, some earlier documentation of these 3 criteria, above, your "informal" claim could serve to get you an earlier effective date.  

     Even tho this is pretty old, you may check through this to see if you meet any of the criteria listed below:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

[Buck52]

I believe it's worth a try to get his EED pushed back to the May 10 -2013 date  if he has the records to prove he was treated for it back then and he said he did?

But as Broncovet and Ms berta mention they are hurdles to clear.

I am thinking the award date filing on his claim  he can prove the disability was on-set/when first arise before he filed, had the VA cardiologist's notified him at that time  he could have filed a claim then, & he also has medical records to prove this date. I assume ( Medical Notes from both VA Cardiologist)

I am not sure what all he used in his EED/NOD  AS FOR AS HIS MEDICAL EVIDENCE AND STATEMENT? This is where an experienced attorney would be handy, how we word things makes a big difference on a  decision.

  I wish he had waited  just a little bit more  so we could have helped him better....so now it's just a matter of waiting? for the  EED decision.

Edited March 23, 2018 by Buck52

[Buck52]

I have medical notes from my PCP that on some conditions that have been diagnose that can/could be S.C.

Some of them  I   am being treated for  but I am just give out dealing with the VA CLAIMS PROCESS...so just never wanted to file on them  and maybe I should try to get them at least S.C....But since I am ok with my ratings I have now  I just let it ride.

My point is I know I could not get a EED back to these diagnosis & if I did get a grant on some of these  they would go by my first claim date filed for these contentions.conditions.

and since I am 100% with 2 SMC's there's no more $$ in the pot for me.  it would be just to get them S.C.

 

Edited March 23, 2018 by Buck52