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]

So far it seem that Clemons is the best case law I could find.

Ingram has a lot of good info on CUE claims.

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

A long read but very detailed.

 

[Berta]

Hill and Ponton agree with that- 

https://www.hillandponton.com/va-disability-benefits-what-happens-to-my-claim-if-i-am-wrong-about-my-diagnosis/

In part:

The Court noted in the case of Clemons v. Shinseki that most veterans applying for disability compensation are not medical experts.  As a layperson, a veteran’s diagnosis of his or her condition would not be accepted as evidence that the condition exists.  Why then, would the VA be allowed to hold the veteran to that diagnosis in terms of limiting his or her claim?

Instead, a veteran is considered to be competent to provide testimony as to what symptoms he or she observes and experiences, but not to assign a diagnosis to those symptoms.  The VA, then, in considering a veteran’s claim, may not limit the claim to the diagnosis listed by the veteran in his or her claim form but must consider the symptoms described by the veteran and the medical evidence provided which relates to those symptoms.  As stated by the Clemons court, “the fact that the [veteran] may be wrong about the nature of his condition does not relieve the [VA] of [its] duty to properly adjudicate the claim.”

It should be clarified that there is, in fact, a requirement in almost every case that the veteran have some diagnosed disability in order to receive disability compensation.  [See our post on Gulf War-related illnesses to find an exception to that rule].   So a veteran can be wrong about the proper diagnosis and still receive compensation, but if the VA finds that the veteran cannot be diagnosed with ANY condition, no compensation will be paid.

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  When VA benefits are being discussed, we are generally referring to VA disability compensation benefits.  However, you may be entitled to some of the other benefits offered through the VA…""""

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  VA Disability Benefits - Back to Basics

  We often blog about the intricate details of specific issues in VA law, so I wanted to take a moment to take us back to the basics of VA disability…"

(article by)Shannon Brewer, Senior Attorney

Hill And Ponton

 

 

 

[63Charlie]

VA rejected a claim for ingrown toenails due to not having a current medical diagnosis for ingrown toenails.

Ingrown toenails was diagnosed and surgically treated in service.

I'm competent as a lay person to self-diagnose this recurring condition.

We will see how the BVA rules on it soon, hopefully.

 

 

Looked at the topic ..sorry for the derail

Edited June 28, 2020 by 63Charlie

[Buck52]

63 charlie

your question is kinda werid (no pun intended) but I have had my big right toe ingrown for about the last 20/25 years I have to have it cut out about every 2 YEARS or so  I been cutting it out myself   since the VA Dr kinda frown on it when I ask his if it could be service connected...but I never had ingrown toe nail while in military,  it basically started when I gained weight about 20 to 25 years after military

The VA Dr tried to blame it on my shoes or boots being to tight and also my weight can cause ingrown toe nail.

These Ingrown toe nails can really be painful at times ,The VA Dr mention to me  just roll up some cotton and poke under neath the nail then the nail will start to grow out correctly...I tried that several times  it don't work with my toe.

I   removed the entire nail and it just grows back and I still get the ingrown toe nail   on my right foot only.

SO I JUST BEEN PUTTING UP WITH THE DARN THING.