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

 

[Berta]

Do you get SSDI and if so for the exact same disability that is SCed?

Did yu advise the VA of the SSA award letter, and also did you sign an authorization form for VA to get the SSA records, and if so,

did the VA get those records and did they consider them in the Decision?

(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"

As I explained here before- my husband had filed for higher that 30% SC PTSD rating, within a few months ,in 1992 prior to getting his SSA PTSD award letter dated 1993, but with an effective date of Oct 1991.

The VA gave him properly the Oct 1991 EED. After a small battle I had with them....small in comparison to the many BIG battles I had-

I should state this better- by then he was dead for almost 3 years , it cameto me as an accrued benefit, but my point is this is one way a vet can fit into that regulation above and get a better EED .

 

[pacmanx1]

This is not a SSA claim and I was not granted SSA for this condition.  I apologize, I had to do some research and posted two different post. I have been having problems trying to combine them. I will have to cut and paste. Had to change a little from the other post but here it is.

Ms. Berta, the op (Original Post) is claims that I had filed years ago. Recently talking to my doctor, just got a letter connecting my sleep apnea to my fibromyalgia.  In reviewing my records I found where I was first diagnosis with fibromyalgia. I was being treated for chronic pain, arthalgia, polyalgia,  psoriatic arthritis and a host of muscle and nerve problems.   I will have to look for those ratings but the kick is, I am very interested in the statement that you said about a veteran not knowing medical terminology and when a veteran files a claim, VA has a duty to assist the veteran.  No not gulf war related. I am service connected secondary to mood.   It just surprised me when looking through my records, I found my VAMC treatment records.  A VAMC rheumatologist diagnosed me with fibromyalgia.   I am still waiting for a BVA EED back to 1998. Buck, sorry but right now I can't even wrap my head around this new puzzle of mine. I do know the fact that when VA granted my fibromyalgia claim they should have used the effective date of my VAMC treatment records under 38 CFR 3.157 because this evidence was in the VA possession and it is well ascertainable that they should have found it. 

OK I know what happened but not sure of my next step.  It appears that I filed a claim for multiple joint pain in or around 1999-2000 and my claim was rated and denied in February 2000.  I did not file a NOD. I was then diagnosed with fibromyalgia by my treating Rheumatologist in September 2000.  I filed for fibromyalgia secondary to mood between 2006-2007 and it was granted. Still looking through records to find more golden nuggets.

Yes, I am betting on that along with 38 CFR 3.156 and 3.157 VAMC medical records that I recently found in gathering evidence of my upcoming sleep apnea claim. Bronco, I recently won an EED claim that is very similar in the effect that VA had evidence in their possession that showed I not only had a diagnosis but I was treated by VA but this evidence was not used or considered and was granted a EED.  It seems that there are times when a veteran finds a CUE claim in his/her records that there is most likely more than one.

Ms. Berta, I also won my migraine service connection with Clemons vs  Shenseki. 

Since this claim is well over a year, I am not sure how to go about to get VA to look at the effective date, the evidence and the C & P exam notes where it does state that my effective date should be 2000 and not 2007.

[pacmanx1]

So should I file a CUE or reopen my claim for EED or is there another avenue? Really not interested in going another five to twenty years.

[Berta]

I will try again to find proof of this:

"I am very interested in the statement that you said about a veteran not knowing medical terminology and when a veteran files a claim, VA has a duty to assist the veteran"

Without knowing what the older decision said, and since you had a successful CUE already, I would file BOTH CUE and a 38 CFR 3.156 claim, on the same form adding the evidence for each of those claims.

Just separate them with a line after the first claim __________________________________________________

We are never prevented from filing a claim with more than one theory of entitlement.

I did it myself on my very first DIC application.

I succeeded on the initial theory ,1151 DIC due to wrongful death. 1998.

I succeeded in a re open of the direct SC death claim filed in 1995, in 2009.AO DMII, than direct SC death for AO IHD in 2015 ( i think it was) and have an additional claim pending for service connected death contributed to by AO HBP.

As you already know Pacman, the VA will need a copy of the decision you are filing these claims on.

This is a very good piece of evidence.-, but did the examiner give a solid rationale for that?

 "the C & P exam notes where it does state that my effective date should be 2000 and not 2007."

The only FAST WAY ( and it sure can be fast) is when a claimant files a successful CUE right away, on a VARO decision they have just received.

Or better yet, if they ask for HL Review and the HRL calls a CUE on the decision before it is finalized and sent to the veteran.

It is part of the HL reviewer job to do that. But I feel that is our job as well, to seek CUE in any recent decision any of you get.

 

 

 

 

 

 

 

 

[Berta]

https://www.va.gov/vetapp14/Files1/1410073.txt

This case has citations to include Clemons that might help here- it will take me time to review the case and citations.

Basically it states this:

"The appellant initially asserted that he had an ulcer related to his service, but more recently he expanded his claim to additionally include diagnoses of diverticulosis and GERD, so this claim has been recharacterized more generally as for a digestive disorder. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for a disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits. The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled. The claims of entitlement to service connection for an acquired psychiatric disorder and alcohol dependence, however, require further development before being decided on appeal, so the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the remaining claims for a digestive disorder and back disorder."

Ingram V Nicholson is 34 pages long-

https://www.courtlistener.com/opinion/817166/ingram-v-nicholson/

It will take me time to read this and the other citation in the above BVA citation.

Did the VARO ever " re characterize" your initial claimed disability to fibromyalgia.

[pacmanx1]

Thanks, I will have to do some more homework. Yes, I did win a CUE claim early but I want to make sure my thinking is straight.  My fibromyalgia gets to the point where I am in so much pain I can't think straight or focus until my symptoms calm down some.  I want to make sure that I file my claim at the right time. This could very well change another effective date.