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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

HadIt.com Anniversary 24 years on Jan 20, 2021

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Not sure who might know this, possibly @brokensoldier244th, but would there be any reason for a C&P exam being performed (in my record), without me filing a claim during the time I had the exam? It appears favorable with exception to the examiner making a remark toward the end.

I recall sitting down with someone from mental health during that time at the VA because I indicated my issues with mental health during my (presumptive from exiting active duty) left knee claim that was SC'd.

I just find it odd that, even with diagnosis and favorable findings, it was never listed as a disability or NSC disability. I never even knew it existed until recently

I can redact and post exam if needed. Thanks!

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I think the form that you may be searching for in your C-File would be a VA form 119 REPORT OF CONTACT.  It is when a veteran and or his representative contacts VA.  If you had a representative he/she

Foxhound6 When the VA does a C&P, they are supposed to tell you the purpose of the exam. Sometimes they don't. Happened to me as well. I thought it was a routine check on my heart condition but it

Foxhound will this help, 38 CFR 3.157 – Report of examination or hospitalization as claim for increase or to reopen (a) General. Effective date of pension or compensation benefits, if otherw

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yeah, its pretty nuts from what I hear. Miy training was wall to wall 8 hrs a day from April to June before I could even start looking at claims, and even then every action I took was reviewed and critiqued for almost another month before I could work on my own, and then it was still another 3 weeks before I was actually held to standards where my mistakes weren't just fed back to me to fix, but also counted against me. They do try really hard to not just drop you into things but you've seen the M21 (or maybe you haven't- you should, its publicly accessible). There are literally some things in there that contradict themselves depending on how and where you look. Its been a multi year project trying to clean that thing up, and its still ongoing, plus every time something gets changed ...........*smh*

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11 minutes ago, brokensoldier244th said:

yeah, its pretty nuts from what I hear. Miy training was wall to wall 8 hrs a day from April to June before I could even start looking at claims, and even then every action I took was reviewed and critiqued for almost another month before I could work on my own, and then it was still another 3 weeks before I was actually held to standards where my mistakes weren't just fed back to me to fix, but also counted against me. They do try really hard to not just drop you into things but you've seen the M21 (or maybe you haven't- you should, its publicly accessible). There are literally some things in there that contradict themselves depending on how and where you look. Its been a multi year project trying to clean that thing up, and its still ongoing, plus every time something gets changed ...........*smh*

Thanks for the perspective! It sounds intense but also "typical" of a fed agency LOL. I will have to look up the M21. I have a general interesting in law (obviously why my degree was in Crim J). That interest is what has gotten me to get the knowledge I do have now. I will say, the curve with leaning claims process is a sharp one! 

I also need to look into CFR...the other half lol. Specifically, which may pertain to this question of EED I have. I'll feel less overwhelmed once my pending claim is complete, have more focus to give to research.

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I would think they can request a new C&P if they are on the roll to reduce ratings, especially those under 5 years.  Back in Jul 2018 there was a report by the OIG: IG Report Unwarranted Medical Reexaminations for Disability Benefits.  Yet they are still doing it.  

With my son, they used that good ole "sent to an old address" trick.  He didnt show and bam  conveniently reduced for "failure to show up".   Because he was a person back in 2016 that had his Ebenefits acct hacked, he then deregistered.  Because of that  he couldnt get in it to see what the issue was.  

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On 9/23/2020 at 11:59 AM, brokensoldier244th said:

Maybe, I don't know. Since I don't rate Im not really privy to the subtleties of interpreting the M21 when it comes to ratings activity.

After doing more eye ball drying searches over google, I found an interesting article by the Veterans Law Blog. It would seem that even normal raters do not have the ability or training to go back and even attempt to give an EED anyway.

It also touched on an argument example that sounded a little like my situation, Ill quote it here and link article at the end.

Quote

Earlier Effective Date Argument #2

Next, you are going to want to see if there are any previous claims that are open and pending.

You have a prior claim for the same condition, or that reasonably encompassed the condition you just won, and it was never finally adjudicated by the VA, then it is still open and pending.

There are many ways that a claim could still be “open and pending”. Here are 2 of the most common scenarios

  • You or your representative did not get a copy of an adjudicatory document in the prior claim. See 38 CFR 5.125(d)
  • You filed evidence or argument relating to the reason for the denial within one year of the VA Ratings Decision that the VA says you did not appeal. See 38 CFR 3.156(a)

(This almost sounds like my issue here. They initiated a claim, sent me to the C&P, then did nothing with it. I feel it could be still "Open and Pending"  (not able to appeal) which I assume could be what you meant when you said they should have canceled it?)

Example: You just won service connection of your PTSD in 2017.  In reviewing your C-File, you find an old claim for service connection of your PTSD that you filed in 1998.  The VA issued a decision denying the claim, but when you look at the decision, it was not sent to your VSO or lawyer (or to an address that was not your address of record in the file at the time).  Because the VA failed to provide notice, that claim is open and pending, and your 2015 PTSD claim’s effective date could be the 1998 claim date that is still open and pending.

Example:  You just won service connection of your PTSD in 2017.  In reviewing your C-File, you find an old claim for service connection of your PTSD that you filed in 1998.  The VA issued a decision denying the claim because there was no evidence of a current diagnosis.  You received the decision, but in looking through your C-File, you see that you sent in a lot of civilian medical records for treatment of PTSD in a local hospital shortly after you separated from military service.  Because the VA never addressed this evidence in a VA Rating decision, your claim for PTSD was open and pending since 1998 and would serve as the effective date for the 2017 grant of service connection.

Earlier Effective Date Argument #3

So you could not find any open and pending claims for service connection using the regulations.  Now what you want to do is look for old claims that reasonably encompassed the condition that you just won service connection for, and see if you can make an argument that your current claim was reasonably encompassed in the prior claim.

This is a tricky argument…mostly because the VA itself doesn’t understand it.  The VA thinks that you cannot file a claim for benefits without a claim form that specifically mentions a particular condition. Time and again, the courts have told them that they are wrong: the courts have said that the VA should liberally construe the record to determine if additional conditions were raised in a prior claim even though they weren’t specifically mentioned on the VA Claims form.

Now, there is “some” merit to the VA’s arguments after March 2015 – after that date, you need an informal or formal claim form to be filed to demonstrate intent to file a claim.  Prior to that date, though, this is not the case.  (My C&P, or "claim", was in 2013)

Now, if you have to “reach” to make the argument, you are not going to win, in all likelihood. The courts have also been very clear that the VA shouldn’t have to go on a fishing expedition to discern every possible claim that could have been possibly raised in a claim for a separate and distinct condition.

What you are looking for are things like this:

  • medical records in an original claim for Condition A that show that Condition B was caused by or related to or aggravated by Condition A.
  • claims related documents in a claim for Condition A that show that the claim was actually for a body system or a general illness or ailment and not a specific diagnosis
  • claims that describe symptoms or impact on body systems, that are subsequently diagnosed in the course of developing the claim.

More on this later….we’ll get together a whole post on what it takes to prove that an earlier claim “reasonably encompassed” a later condition for effective date purposes.

So, in theory, if I do have an argument here....the initial rater wouldn't have been able to do anything with it and probably had no knowledge of that type of issue. However, it would seem a HLR should pick this argument up fairly easily if this is indeed the case. I'm not at all holding my breath on this, just trying to bounce the thought while waiting on my CFile.

 

Article: https://www.veteranslawblog.org/the-ultimate-va-claims-effective-date-checklist-how-to-get-an-earlier-effective-date-in-your-va-claim-or-appeal/

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