Effective Date of Service connected Compensation

[pacmanx1]

We all know that VA is in the habit of granting a veteran service connection after he/she has a C & P exam but the regulation does not support that if a veteran already has a diagnosis. 38 CFR 3.400 also includes 38 CFR 3.156 and 3.157 to include newly found medical evidence, SMRs and medical treatment records. Effective date are very tricky and the only true way to figure out a veterans effective date is to review his/her entire VA C-file. Would like to hear your feedback.  Will someone please spotlight this regulation I keep forgetting it then have to find it all over again.  

38 CFR 3.400

(a) Unless specifically provided. "On basis of facts found".

What are the facts?   When was the earliest date a veteran was diagnosed with his/her disability?  When could VA ascertain this medical evidence/information?  These are the questions to ask about your effective dates.

(o) "Increases (38 U.S.C. 5110(a) and 5110(b)(2), Pub. L. 94-71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 - (1) General. Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later". A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) "Disability compensation. Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim". When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. 

https://www.govregs.com/regulations/expand/title38_chapterI_part3_subpartA_subjgrp71_section3.400#title38_chapterI_part3_subpartA_subjgrp71_section3.400

 

[broncovet]

Importantly, the VA has changed the rules on "what is a claim" on March 24, 2015.  Prior to that date, once a Veteran was service connected, he could file an "informal claim".  It made sense.  You have already filed "one" formal claim, on the original application form and you dont need to duplicate that.  

    Well, the VA was paying out to much retro to claimants whose attorney found out they had filed an informal claim, so they put a stop to that, in 2015.  (If you filed an informal claim prior to March 24, 2015, you should still get "claim date" of the date of the informal claim.  But your effective date is still limited by the facts found, which means the date the doc said you were disabled.)

      Source:  While this is a BVA decision, it is supported by precedential case law:

This case was posted by a hadit member, and, when I find it I will try to post it AGAIN.  

[pacmanx1]

Bronco, you are correct that I did not consider that stupid March 24, 2015 intent to file law because it dose not apply. In establishing an effective date, if a veteran files a complete claim and the claim is denied and the veteran then finds medical records of a diagnosis and or treatment records then that date is the facts found and should be the correct effective date.  As stated in my OP(Original Post) I was not just going on 38 CFR 3. 400, I also used 38 CFR 3.156 and 3.157 in which you know would have to be used in consideration in granted the effective date.  As I, you just recently won an EED and the March 24, 2015 does not supersede prior completely filed claims.

[broncovet]

Prior to March 24, 2015 a Veteran did not need a "formal" claim.  He could use a 21-4138, or, as someone said, a napkin.  This applies to a claim for increase after you have already filed one "formal" claim. 

   It does not have anything to do with ITF, the intent to file probably has differening dates.  

    After March 24, 2015, Veterans need to file for benefits "on the form described by the secretary".  There is a "regular" NOD form, for example, that you currently have to use.  You can no longer file a nod on a 21-4138 or a napkin.  

     What that means is, "look" in your file for anything that meets the defination of an "informal claim", dated prior to March 24, 2015, when that all changed.  This could result in an Earlier effective date, "but only if" the "facts found" support it.  Rememeber, your effective date is the later of the "date of claim" or "facts found" because your doctor decides "when" your condition started.  

     This said, many times the VA uses "the date of the C and P exam" as the facts found.  Its bogus, but VA gets away with it because many/most Vets dont know enough and lets the VA get away with it.  

     If the VA made your effective date the date you went to a c and p exam, get that exam and read it.  Did the doctor reference another doctor's diagnosis?  You can argue your effective date was not the date of the exam, but rather the previous doctor's date..the date the doctor inspected you and diagnosed you.  

[pacmanx1]

Well that works for me too. Since I had multiple C & P exams I had to cut and paste but here is my  fibromyalgia C P exam notes. So far I found four separate VAMC appointment records that diagnosed me with Fibromyalgia in 2000 . I was rated 100% P & T after this exam.

PROBLEM: fibromyalgia

DATE OF ONSET: 2000

CIRCUMSTANCES AND INITIAL MANIFESTATIONS: reports his initial sx were

stiff neck, multiple joint pains, sleep disturbance

COURSE SINCE ONSET: Progressively worse

CURRENT TREATMENTS: Medical

RESPONSE TO TREATMENT: Fair

DURATION OF TREATMENT: since 2000

DATE OF DIAGNOSIS: 2000

PROBLEM ASSOCIATED WITH THE DIAGNOSIS: fibromyalgia

AMOUNT OF TIME LOST FROM WORK IN THE PAST 12 MONTH: not able to work

EFFECT ON USUAL OCCUPATION: Not Employed

ARE THERE EFFECTS OF THE PROBLEM ON USUAL DAILY ACTIVITIES? Yes

CHORES: Severe

SHOPPING: Moderate

EXERCISE: Severe

SPORTS: Severe

RE CREATION: Severe

TRAVELING: Moderate

FEEDING: None

BATHING: None

DRESSING: None

TOILETING: None

GROOMING: None

EXAMINERS MEDICAL OPINION: fibromyalgia is as least as likely as not

(50/50 probability) caused by or a result of mood disorder.

RATIONALE FOR OPINION GIVEN: Fibromyalgia is a diagnosis which includes fatigue, sleep disorder, and mood disorder, along with multiple joint and muscle complaints. Almost certainly the fatigue, sleep disorder, and mood disorder he suffered from while in military were a part of his fibromyalgia disorder

Edited June 24, 2020 by pacmanx1

[broncovet]

Your answer is right there in black and white:

You posted:  

Quote

DATE OF ONSET: 2000

The exam also gave 2000 for the "date of diagnoiss"

     This provides "half" of the effective date duo.  Date of "Onset" is Social security speak for the date your symptoms begin.  Social Security calls (what we call the effective date), "the onset date".  

     The other half to the effective date duo is "the date of claim".  That isnt always easy to figure out.  

[pacmanx1]

On 6/24/2020 at 11:04 AM, broncovet said:

Your answer is right there in black and white:

You posted:  

The exam also gave 2000 for the "date of diagnoiss"

     This provides "half" of the effective date duo.  Date of "Onset" is Social security speak for the date your symptoms begin.  Social Security calls (what we call the effective date), "the onset date".  

     The other half to the effective date duo is "the date of claim".  That isnt always easy to figure out.  

So what is the simplest way to address this issue?