Denied EED

[Ann Bracey]

VA denied my claim for EED. My grant for SC for cause of death as well as DIC was granted 8 years after husband's death. ( have included this information before). I know the VA Law says with claim reopened the effective date is the date it was reopened. Now I must decide if I should appeal again or file a new claim going back to when my husband first was diagnosed with condition that caused his death. I feel like because he was Veteran served on Koret Air Base on perimeter the date should be 2010 which is date VA recognized these Vets were exposed to AO. Appeal or file new claim is my question. Help???

Ann Bracey

[Berta]

Thank you TBird- we have wonderful people here, who do all they can to help others and with Google Alerts we can get the most updated info we need as well, on many of the nuance of VA case law.

Of course the best bet for many of us is to buy the VBM, which I certainly do , as it has every new change to VA regulations and M21-1Mr, and assessments of the latest precedent CAVC cases.

I use a direct citation from the VBM for my SMC CUE claim.I had the legal evidence to win but I liked the fact that NVLSP staed that  SMC consideration  is "mandated" by law. The legal error they made was a lack of SMC consideration, when the rating sheet itself showed 100% SC P & T for PTSD and 80 % for 1151 stroke - subsequently changed to 100% P & T for the stroke under a different CUE)

I worked for lawyers for many years and part of my job was adding supplements to laws, as they came in. 

The reason the VBM is so large is because it does have info that was in past VBMs but any regulations change (technically  a legal  supplement) is added right after the repeated information, including current citations.That is so much easier and less time consuming to read ,than what I did in the olden days, with supplements ,that involved time finding the law books they supplemented.

In  1992 NVLSP did issue a  large VBM supplement. But it was very hard to keep going back to the 1991 VBM, to get to the references they made. 

My AO NVLSP contact for many many years, Rick Spataro, is working on the VBM and other NVLSP things, but I have a new NVLSP AO contact who will gladly help with any questions I might have re: BWN AO and I am sure they will be reviewing decisions for proper EEDs as they did during the last Nehmer case in 2010.They have a bluewaternavy AO addy already I think.

 

 

 

 

 

 

 

 

[broncovet]

Like Berta, I had also disputed something Tbird posted, but kept my mouth shut, in no small part because it was a judgement call.  

The issue was on whether or not a Veteran should "wait" for a doctor's diagnosis before filing a claim.  

Tbird's position was that one should wait.  

I disagree.  Here is why:

Whenever one waits to file a claim, if awarded, it costs them retro payments, as the effective date cant be earlier than the date applied.  If it takes 6 months for a doctor to diagnose a condition, that is 6 months retro down the drain.  

The Vet need not wait for a diagnosis.  While one will be required before benefits are paid, that evidence can be provided by the Veteran at a later date, and the Vet still should get the effective date on the date filed.  

At least as important, differing doctors often disagree with each other on a diagnosis, prognosis, or treatment of a disease, as well as the etiology of said disease.  

Therefore if Doc A, says you have PTSD, and you apply for PTSD, doc B "may" well state that this not PTSD but instead Bipolar.  You could easily be denied because you applied for PTSD and were not diagnosed with PTSD, but Bipolar instead.  (The BVA can choose to accept one doctors opinion over another, but must give a reasons and bases for doing so, so the claim is not necessarily "in equipose".)  

By getting TOO specific by specifying a diagnosis, a Veteran can be cutting his own throat, opening himself up to differences of opinions by doctors.  

Therefore, my suggestion to improve the chances of benefits are to apply like this:

"I would like to apply for PTSD and/or any other mental health disorder which may be diagnosed by a doctor".  

In short, the Veteran does not have to self diagnose, he needs only apply for a mental health disorder, and let the professionals decide the diagnosis, and which one, if any, applies.  

The same is true with knee problems, one doc may say its arthritis, another may call it bursitis or something else.  I say, the Veteran need not get involved in a disputed diagnosis, but should "point to the body part affected".  

More than once I have answered questions by Vets who were denied because of no diagnosis for a condition where the VETERAN volunteered a diagnosis.  I suggest that, since a Veteran can not diagnose his own disorders, he apply for example, "for any and all mental health disorders which may be diagnosed by a doctor".  

If these Veterans did this, it would save them much time.  The Veteran does not know what diagnosis the c and p examiner will choose or rely on.  The c and p examiner may review your records and find you were diagnosed with both depression and bipolar, and he may choose one or the other.  

Deliberately "limiting our own benefits" to one diagnosis, can be unproductive or even counter productive.  Therefore, dont try to diagnose, and dont count on doc A's diagnosis, because doc B may well say you dont have that diagnosis, but you have something else instead.  

[Buck52]

 I understand your logic broncovet  but by filing a claim without a diagnose just makes the claim more or less SINK into the hamster wheel  it slows the claim down  because you know they will deny a claim without a diagnose .

Okay Say The examiner makes the dx  WHAT IF THE EXAMINER IS NOT QUALIFIED TO MAKE THAT DIAGNOSE?

We all know we get the luck of the draw on these examiners and chances are that the examiner will not be qualified to make the diagnose  especially in Mental Health

By filing a claim before being  Diagnosed is bad business in terms of dealing with the VA  (jmo)

I agree with Tbird and respectfully disagree with your opinion for veterans to file a claim before he /she is diagnosed.

[Buck52]

When I was diagnosed with PTSD  I never ran to file a claim for it  right then

I was in treatment trying to get my self better  and never even thought about filing  or what my EED will be or how much I lose in retro$$.

 I was thinking I need to get well...well further into therapy my therapist  mention to me I should file a claim for chronic PTSD to get it service connected /rated..So I did  which I already had a diagnosed  & yeah I might have missed out on the EED  but to me that didn't matter. but to some Veterans with hardship yeah sure it matters.