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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

      a. Medical visit dated 24 Feb 76 for problem sleeping and depression.
      b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
      nervousness.
      c. Physical exam dated 07 Nov 83 listed frequent/severe headaches.
      d. Physical exam dated 16 Jan 85 listed frequent/severe headaches.
      e. Admitted to hospital 05 Aug 86 for chest pains and anxiety.
      f. Medical visit dated 14 Jul 87 for problem sleeping and morning confusion.
      g. Physical exam dated 25 Feb 88 listed dizziness.
      h. Physical exam dated 07 Oct 91 listed frequent/severe headaches
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      j. Hernia repair surgery dated 22 Ang 94 surgeon had to insert devices of some
      kind in each of my nostrils that went down into my throat to keep rny airway
      open and stop my disruptive snoring.
      k. Physical exam dated 29 Sep 99 listed frequent/severe headaches.

      So could you all take a look and let me know what you think.

      Redacted VA NOD SOC 04-09-2020.pdf
      VA 2008 Denial of OSA Redacted.pdf
      VA Claim Decision Ltr 08 Nov 2018 Redacted.PDF
      • 3 replies
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Alpenliter

Effective date questioned

Question

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.

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Ok, just faxed my NOD out with a copy of the EKG that clearly states I had a heart attack back in 2013.  Yes Berta, I was an In country Vietnam vet.  The docs ascertained that I had a heart attack in 2013 or before by looking at my EKG.  don't know how they read them, but that's why they make the big bucks. I'm not familiar with the 1151.  Yes, Buck I know I was playing it pretty close to the wire, but was debating whether I wanted to rock the boat as I was very pleased to get the 100% disability and everything that comes with it, although I would trade it all for good health.  Thanks Berta and Buck for all your advice and assistance.  Heaven has a place reserved for you both!

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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.

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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/

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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 by Berta

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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

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