date of claim | Veterans Claims Help

date of claim

Posted on September 29, 2011 by asknod

RDMURPHY
Registered: 07/31/10
Posts: 49

	04/14/11		#1

attempting to puzzle this one out and figured finally to ask for help. Trying to determine how far back my claim for compensation can go. Exposed to hep c in service in 1982{hospitalized on active duty}. Struggled thru untill diagnosis by civilian doctors in 2005. attempted 1st claim in 2006{VAclaims to have no record}. restarted claim process after transplant in 2008.Approved SC in 2008 and filed for appeal on date of disability immeditley. VA states my hepc was comtracted in service, my QTC physical states my militaty records show symptoms in 1982. Reading statement of case sent me in 01/11 38U>S>C> clearly states that after a claim has been aproved or denied a report of hospitalization will be accepted as date of claim. Also have filed for UI form 2006 when SS disabled me. Have documation out the wazoo,given to VA. opinion please sirs.
Edit \| Delete

Manager
Registered: 11/22/08
Posts: 654

	04/14/11		#2

Here is the rule as promulgated by VA. Then we will address your 2006 attempt.A claim for injury/disease can be no earlier than the date of filing unless you have been out of the service less than a year. You get a one year presumptive on everything post service, and a sliding scale for other illnesses too numerous to list here like TB etc. Now, in the real world, we file claims and the gentlemen at the VARO sometimes misplace these filings. Some Vets in Cleveland would have us believe their claims have been routed to the shredder room and there is ample proof of that according to the VAOIG. Moving on, if your claim was filed via a VSO or other entity such as a lawyer, there will be proof of it at the RO. If you filed it pro se and did not send it certified mail, return receipt requested (CM3R) then you basically have no proof that you did so. You can overcome this problem if you had someone with you when you mailed it at the P.O. Or, if you are kissing cousins with the postmaster/mistress, he/she can sign an affidavit that you did this and they witnessed it. Merely trotting out to the mailbox and running up the red flag is not evidence that will stand up in court. This is called the common law mailbox rule. There is a very informative CAVC decision we posted entitled Rios v. Mansfield that tells all about this. We don’t want to spoil the story for you so we’ll let you read it. Its in the Important CAVC Legal Rulings section. Lets us revisit 2006 though. Did you file this or was it via a VSO? You state you “attempted 1st claim in 2006” but do not entail what that consisted of. If it was not a “formal” claim on a Form 21-526, it could be as an “informal” claim- one voiced to a VA doctor and desirous of seeking service connection. A VA doctor is obligated to forward this request if it can clearly be decided that you did so. Merely stating to the guy taking your temp. and B/P that “VA like so owes me, dude and I’m gonna get justice some day” is not an informal claim. It has to be more specific. Here’s an actual example one of our moderators finds himself in. He filed a claim for hearing loss, and while being examined for this, he voiced the fact that he was severely depressed about how much trouble he was having getting a job due to the hearing loss drawback. Very clearly, this is a classic example of an informal claim for depression. We will find out how VA rules on it sometime in the future when the VA sees fit to address it. Its on appeal. A report of hospitalization can and is often used as a point of reference for a claim filing. What better way to file than to collapse and go to the hospital? That’s a pretty clear statement of the medical facts. Filing for IU (or TDIU) involves a lot more than just filing based on a SSA finding. While VA recognizes SSA holdings of disability, it is not held to any legal standard to honor it. VA is an agency unto itself and is not affiliated with the Social Security Administration. We haven’t determined which drummer’s beat they march to yet, either. Absent a rating that will support a TDIU grant, there can be no foundation for it. Merely applying for it based on an SSA determination gets you very little as you might have found out. My VSO did this in 07. I had a 0% for tinnitus and another goose egg for left ear hearing. I was circling the drain with an AST/ALT of 595/650 and said “What do I do? I can’t work. I’m too sick.” He handed me a TDIU form and said “Here’s what I’d do”. I pointed out that I didn’t qualify with a double ought rating. His immortal rejoinder: “Well, you’ll never find out if you don’t try.” My wife was with me and leaned over and asked if Clarence Darrow was who I was pinning my legal hopes on. She suggested the Publisher’s Clearinghouse Sweepstakes had much better odds. Don’t you hate that when your wife is soooo right? I went home, composed my revocation of Power of Attorney and started studying VA law in earnest. I did file my PCH form, but never ran into the Prize Patrol on the front lawn. Given the information you have supplied so far, this constitutes our best guess on what awaits you. I had hep in service in 1971, but VA will never pay me back to that date because I didn’t file when I got out in 73. My hep was not apparent then either- just the AO symptoms. But AO wasn’t recognized for another 11 years so again- zip. Life is unfair, but VA takes it to a whole new level of deprivation. We are stuck with the rules we are dealt. With that said, its important to investigate every action on their part in 2006 that lead to this unadjudicated claim. If you feel uncomfortable discussing it in front of the world, PM me in the upper right link. If they did something stupid like receive your claim and drop the ball (and they often do), we can show you the legal maneuvers necessary to attack this and establish your effective date as 2006. It’s not impossible. As my SO said those many years ago; “You”ll never know if you don’t try.” I personally don’t believe in “trying” anything. Trying, by its very meaning, implies ultimate defeat. As Yoda said once “Do. Or do not do. To try is to fail”. Lacking a positive mental attitude (PMA) is another harbinger of failure. Mr. RDMURPHY, when I arrive in Hell, I will have some interesting arguments in my NOD. Trust me.
Edit \| Delete

RDMURPHY
Registered: 07/31/10
Posts: 49

	04/15/11		#3

Thank you for your swift response, don’t have any problem putting this out to the world,so here goes. 2006 claim was filed formally, mailed by my wife as I was in civilian hospital with complications from hepc. was not return receipt as I waS FOOLISH in beliveing that VA was here to help at the time. Have witnesses who went with her to mail, so may be ok there. still pending response to my challenge of SOC. AS far as date of claim ,38USC 3.157[b,1] states once a formal claim has been accepted or denied a report of hospitailzation from VA or a uniformed services hospital WILL be accepted as date of claim. I was hospitilazed with HEP in jan of 82 on active duty. As for unemployability I have submitted to VA civilian records from 2005 showing me with active and chronic hep c as well as hospital reports from 2006 onward thru my transplant in 11 2007. Reading the funny papers they send with each award or denial letter VA states that your effective date is determined by either when they received your claim OR when the evedence shows a level of disability under the rating schedule. Am I misreading these statements?
Edit \| Delete

Manager
Registered: 11/22/08
Posts: 654

	04/15/11		#4

I see your dilemma with deciphering what you are reading. VA does not speak English. They speak TDIU and SOC. They hate dealing with individuals who represent themselves. They much prefer the Good Ol’ Boy network of VSOs with a little Congressional Interest thrown in every once in a while. That had been the status quo for years prior to the internet explosion of sites like this that offer as good or better than what you can get at VFW and the like. VVA is the exception to that rule but it means getting up and driving down there. In spite of what women think, men can multitask but they rarely expose this attribute for fear that it will bring on new responsibilities and cut into their “guy time”. No, its better to be perceived as the Village Idiot and have more time for reloading for bird season. If a guy is going out for groceries with a side trip to La Depot pour la Maison to check out the new line of John Deere lawnmowers, he could easily throw this VVA side trip into the mix. But if he can watch a ballgame with the c-box in his lap plotting his VA legal strategy, that too, is multitasking-for fun andprofit. You are saving the planet, creating less global warming by not driving and learning more about VA. Many of us are ill and the option of just jumping into the rig and motoring over to VVA is not viable. VA decides your date of claim strictly by when they receive it unless they use the hospital date. That is a claim for new illness/ injury never filed previously-ever. If and when you are service connected for a disease/injury, your existing medical records are used to determine an appropriate % of disability. We are referring to contemporary records already in existence at the time the claim was filed and newer ones. VA will not retro to your date of separation absent a filed claim. If you win your claim for a filing in 2006, your newer records can be introduced as evidence and the claim posture becomes one of the adjudicators sitting in 2006 observing evidence from the future. This is a win win for you if it happens. The second phrase “or when the evidence shows a level of disability under the rating schedule” is a generalized legalspeak also pertaining to a filing for increase where you prove to them you are far more ill than they think you are. This usually prods them into writing a slightly larger check to you each month for the disease/injury. All this evidence is absolutely meaningless until you file though. Most Vets are not aware of this but there are two classes of Veterans. Class #1 are all veterans who are not service connected for anything. VA treats you like a welfare cheat trying to claim 10 more Dependants than you have. Everything you say is suspect. If you say anything at a VA medical center to a VA employee about anything having to do personally with the VA, it will be written down verbatim. As in: Patient states”…. Class #2 is composed of Service Connected Vets. They are inside the concertina wire and are not a threat. They are legally on Welfare now and can’t really cause any more unexpected financial harm to VA. Getting in is the trick now, isn’t it? Only 14.7% will ever succeed in gaining membership to this elite club. Getting there is most easily accomplished by following the adage; “When in Rome, do as the Romans do.” Figure out the labyrinthine rules and regs (or ask someone for assistance) and then use it to prove or win your case. Reading the funny papers is entertainment,sir. VA usually gets the wrong doctor’s name associated with the wrong injury. I have been described in the AO rating decision as “A veteran of the Vietnam War” and in the hep decision as a “A veteran of the Vietnam Era”. I think they depend on computer-generated software too much and do not inspect the finished product for continuity, accuracy or spelling. Best of luck on busting open the 2006 claim. Your evidence will certainly prove the claim is valid.
Edit \| Delete

RDMURPHY
Registered: 07/31/10
Posts: 49

	04/15/11		#5

Thank you for the clarity. Spoke to VA today, seems my calls to congresscritters have borne fruit, now showing my secondary claims being reviewed as of early april. My heart goes out to all the men and women fighting this fight. I have been fortunate,if you can call beening infected with this illness lucky by being hospitalized with hep on active duty and than having the govt actually finding my records 22 years later. good luck and good fortuneto all. THANK YOU

About asknod

VA claims blogger

View all posts by asknod →

This entry was posted in General Messages and tagged HCV, Help with vA Claims, Service Connection, VA claims. Bookmark the permalink.

Leave a comment Cancel reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.