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Backdated Diagnosis


awgv001
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Question

How does an individual go about obtaining a backdated diagnosis - I'll give an example -

Veteran is in service and reports secondary symptoms of a well known issue.

The veteran is not a doctor, and doesn't recognize that these symptoms reflect upon a much bigger issue.

They put in a claim for the secondary conditions, and are unchallenged for service connection, however, the causal injury/disease is ignored,undiscovered, or omitted for some reason or another. Everything points to the causal injury as being the "origin" of the secondary conditions.

A diagnosis for the causal injury/disease finally happens, years after the veteran exits service, and now it's up to the veteran to make corrections and attempt to repair their claims history.

There is information in regard to "causal relationships to SC'd secondaries and original injuries via ---- M21-1 III.iv.5.C.3.g.  Correlation Between Effective Date for Primary and Secondary SC Disabilities

Would it benefit the veteran to have an exam that reflects that the causal injury has a backdated diagnosis date, or something that shows that "the disease manifested on XXXX date, the day the injury etc. occurred" just to spell it out, creating a fairly damming case for EED's as well as proof of diagnosis, and cover all the "when's"?

 

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Not really sure what you are looking for but SSA has something they call an onset date, which means the date that a person became disabled.  That will not help you with VA. In order to have a correct effective date (if that exist) is the veteran must 1. Have an in service condition/injury/incident that was noted in his/her records. 2. A current diagnosis. and. 3. A nexus (connection) linking 1 and 2.   A veteran can also win service connection by showing/proving continuity between 1 and 2. With all that said, VA normally grants service connection when a veteran files a claim but we all know that a veterans onset date is when the veteran was in the military.  Yes I know if the veteran files a claim within one year of discharge, the veteran service connection would be the day after discharge.  When I was discharge I knew absolutely nothing about VA disability and service connection. If I knew I could have medically retired but my discharge medical doctor who knew me very well did not explain anything to me and I basically said I was fine, sign my papers and give me my money.  This is when veterans were paid to get out.  Little did I know that I had to pay all that money back.  Even if you find a doctor to review your records and give his/her medical opinion that your disability has an earlier effective (onset) date VA will only grant a veteran's claim if he/she files one.  In other words even if a veteran has 1, 2, and 3, if the veteran does not file a claim he/she maybe entitled but the veteran would not be granted a claim.

 

OK now let this roll around in your head.  A perfect way to cut down and eliminate the backlog.  When a veteran files a claim and the claim is reviewed the person reviewing the claims folder not only review the condition but also review a notify the veteran of any other medical condition that could lead to a service connection.  All the veteran would have to do is show a current diagnosis and a nexus and once after the C & P exams are done and related then bam service connection is granted.  Wouldn't that be awesome?  Only backlog would be for rating percentages. 

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25 minutes ago, pete992 said:

Not really sure what you are looking for

Thanks for you input. When a claim is filed, a veteran may not have all of the information about their own contentions to properly file a claim, such as recognizing specific diseases or injuries. This is to help guide veterans who come through and what avenues they can approach to get a correct diagnosis, or discovery. ---yes, in theory the backlog would be reduced tremendously if everyone knew what to file, and when.

However, a veteran seeking justice for their claims will have to be able to provide information that they should have benefit at a specific time for an unclaimed contention. It's not the veteran's fault for not having a medical understanding for their ailments, nor should they be punished for not claiming a specific contention by its medical name at the time they filed their claim.

My point is, I was SC'd for migraines in 2013 when I should have been SC'd for TBI w/ secondaries as Migraines, along with tinnitus, and visual changes.

The TBI was diagnosed years later, and links the Migraines to a TBI that was not yet SC'd. To further prove beyond a reasonable doubt that my claim for TBI should have been established at the same time my Migraines were SC'd I'm looking for any possible way to strengthen my claim, and for it to bear the best possible EED. How the relationship to causal injury is handled is wrote out in the M21-1.

 
The effective date assigned for a secondary SC disability cannot be earlier than the effective date assigned for the causal or primary SC disability. 
 
When a claim for SC for a disability is pending and subsequent development of the claim reveals that the disability is caused by a disability that may be associated with service, the decision maker must investigate the possibility of SC for the unclaimed causal disability as well as SC on a secondary basis for the claimed disability.   
  • The duty to investigate SC for the causal disability as within scope of the claimed issue is prompted when
    • the claimed disability is shown to be secondary to the unclaimed causal disability, and
    • when the criteria under 38 CFR 3.159(c)(4) have been satisfied.
  • If the causal or primary disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disability. 
  • The effective date of benefits for the causal disability is guided by the date of receipt of the claim for the secondary disability.
Example:  A Veteran claims SC for right leg pain and numbness.  Development of the claim confirms a diagnosis of radiculopathy that is secondary to an unclaimed back injury.  The back injury was sustained in service.  Sufficient evidence to establish SC for the back disability is of record.  Consider the unclaimed back disability within scope of the claimed radiculopathy and establish SC for both issues with an effective date assigned based on the date of receipt of the claim for SC for radiculopathy.
Edited by awgv001
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14 minutes ago, awgv001 said:

However, a veteran seeking justice for their claims will have to be able to provide information that they should have benefit at a specific time for an unclaimed contention. It's not the veteran's fault for not having a medical understanding for their ailments, nor should they be punished for not claiming a specific contention by its medical name at the time they filed their claim.

Yes, I agree but this is a way that VA saves money. I have had some VA doctors help me file some claims I didn't know about but they are very rare.  According to VA if a veteran doesn't file a claim then VA does not have to help.  Now when a veteran does file a claim there is something called the duty to assist but believe me they are not trying to pay all disabilities to veterans.

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9 minutes ago, pete992 said:

Now when a veteran does file a claim there is something called the duty to assist but believe me they are not trying to pay all disabilities to veterans.

Yes, the VA did not apply Duty to Assist, in my case, even with statements, nexus, diagnosis, I was never issued a C&P for my claims across a several year span and with re-opens and HLR.

My plan is to utilize a DBQ I found for TBI specifically (though it wasn't found on the list of 70 DBQ's on the VA website, smh...

On the DBQ I plan to request my PCP (He's a physiatrist) to backdate the diagnosis, and explain in detail how I was diagnosed (VA Neuro) back in 2016, however the manifestation of the injury precludes that diagnosis because of the related secondary symptoms and therefore should be guided by the date of the original claim for the SC'd Migraines.

It's obviously complicated, but I believe that the DBQ would save me a potential remand at the BVA level, and grant me the best EED. (2013)

See below for more details to this question. 🙂 Thanks

 

Edited by awgv001
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OK. I can only say good luck and best wishes.  I say this because I am not only flabbergasted by VA I am totally lost how VA treat veterans.  VA employs and hire more and more representatives and pay them a salary hire then veterans disability pay.  I can't figure that out.  Now check this out, I thought it was a slam dunk and it was but only because I filed a claim to CAVC.  All those denials and the evidence was date stamped by VA before my original claim was denied. I mean SOC after SSOC after BVA says not service connected then CAVC remand and all of a sudden oh your original claim is still open.  Good thing is I don't have to worry about the CUE being denied, all the evidence is still pending.

 

 

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Mental disorders (TBI, PTSD, MDD, etc) can be a special case, but dont expect Va to roll over and play dead on this.  

While I cannot cite the decision or regulation on this, "having a mental disorder" can impact the Veterans ability to apply for benefits.  

I can tell you "its a long shot".  My attorney would "not go there", but, I wound up getting an EED for other reasons anyway.    My attorney is not going to jump over tall buildings to win, when they can jump over a tin can instead.  

BECAUSE you have TBI, this makes it especially important for you to hire someone WITHOUT TBI to help you with your claim.  That is, an attorney.  

Ive mentioned this several times:

Quote

GS11 rating specialists are "probably not" authorized to sign documents that result in you getting six figure retro.  This occurs only with a judge.  

This means you need to get favorable evidence and a favorable arguement in front of a judge as quickly as possible.  

     That is:  HIRE A LAWYER.   Given your TBI, its a very long shot for you.  Even Alex Graham won most of his benefits after hiring a lawyer, and Im in that category also.  

Make no mistake:   

Quote

The VA "will" take full advantage of your mental disorder to grant you less benefits than you deserve.    

You would not beleive all the "bogus denials" I have seen.  Lets start with my "first" denial.   They denied hearing loss because "it was too long since military service".  

They knew I was depressed.  There is "no such thing" in the criteria for hearing loss as "time since military service".   But, if they got me to buy this BS, it would have become final in 1 year.  I didnt buy what they were "selling", so I filed a NOD.  They kept me on the "delay and denial train" for 18 years, coming up with multiple bogus denials, and multiple excuses to delay.  They sensed I was hopelessly outclassed early, when I broght a knife to a gun fight.  (This means I represented my self, while the VA has lawyers to fight me.  The VA has about 500 lawyers full time whose job it is to see you get the least amount of benefits possible).  Well I lost that fight..(not exactly, I "won" service connection and the VA decided I deserved zero percent, which, to me, meant the same thing.  Try go buying milk or groceries with the money you get from a zero percent rating)  

     Well,  I came back from that gunfight where I had a knife..but I brought a machine gun yielding attorney with me.  And I got a much better result.  

    It would take a review of your entire file, including all decisions, for us to even make a guess at what your best arguement for more benefits is.  Often overlooked is:

1.  You submitted new evidence under 38 cfr 3.156.

2.  You have a pending claim that VA never adjuticated.  Remember, prior to about 2012, an informal claim would suffice.  Now you have to fill in a form, but back then, an doctor visit can be construed as a claim for increase.  

      Have you applied and received benefits for TBI??  Have you been diagnosed with it (now)?  

 

Edited by broncovet
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1 hour ago, broncovet said:

1.  You submitted new evidence under 38 cfr 3.156.

2.  You have a pending claim that VA never adjuticated.  Remember, prior to about 2012, an informal claim would suffice.  Now you have to fill in a form, but back then, an doctor visit can be construed as a claim for increase.  

      Have you applied and received benefits for TBI??  Have you been diagnosed with it (now)? 

@broncovet I submitted at least 1 of each of the Caluza elements back in 2015 when I filed a "New" claim for TBI so it doesn't quite fit the bill for your (#2) I suppose....not sure how its handled since it has been adjudicated once, however it is still open and in appeals now, but no matter, and it came back with them saying it was an "inconclusive diagnosis" at the last point of denial --- though we had done second level TBI evaluations as well as a separate statement from my neuro himself that says quote "Based on my initial evaluation, and his medical records, I am treating him for symptoms related to a traumatic brain injury resulting from trauma that occurred during his military service. This diagnosis and my treatments are in each of my clinical notes for your review."

Diagnosis, check, IMO, check.....I'm having a DBQ done on Tuesday for TBI with my PCP while my claim sits in appeals at the BVA.....

OH - I can see that how the doctor wrote that could confuse a rater since his verbiage was "symptoms related to TBI" --- they just said...well, that's not specifically TBI.

So the next doctor wrote - "I concur with the diagnosis of TBI caused by ...... he suffered on active duty." W/ subsequent chronic headaches as a consequence...it is my medical opinion that it is more likely than not that the current symptoms of tbi...are a direct consequence of the injury he sustained on active duty."

So, if anything, I hope that the second doctor make it pretty bulletproof and straightforward.

Edited by awgv001
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You never know until you try.  I was rated at 0% at discharge, my rating went to 30%, 10%, 30% and ten years later to 50% all as to the date of discharge.  I also was rated for a disability with ten years of back pay another time.  The most important thing is that you keep an active case going.  What I mean is that you keep your case open by appealing the decision when you think that the VA is incorrect.  The VA has many ways to deny you a rating but as long as you do not give up you can prevail.  Sometimes the VA will claim the facts were determined as of the last C&P they sent you to.  If you quit there you are done, appeal for an EED.  On our side we have lawyers and the BVA and CVA.

Good luck.  A VA head staffer one time told me the VA does not award persistence.  He was right but that was before we had the option to use lawyers and the CVA.  Some things have changed for the better.

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