When To Argue for a VA Claim Earlier Effective Date

While there are 2 legal processes to pursue an earlier effective date, there are several legal theories that can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.

In a previous post, Chris Attig talked about the only 2 legal processes through which a Veteran can raise a claim for an Earlier Effective Date.

While there are 2 legal processes to pursue an earlier effective date, there are several legal theories that can be used in those processes. Here are 2 of the most common legal theories to argue for an Earlier Effective Date in a VA Disability Compensation Claim.

  • Reopen your claim, and prove service connection, based on military service records or service medical treatment records.

    This is one that the VA hates.  Here’s how it works.
    You, the VA, or any third party discovers service records or service medical records that were not previously included in the VA C-File.  38 CFR 3.156(c) requires that the VA reconsider any previously denied claim to which those records might apply.
    If those records lead to a grant of service-connection for a previously denied claim (even if finally adjudicated), then 38 CFR 3.156(c)(2) contains the following requirement:

    An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date Veterans Affairs received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.
    The VA hates 3.156(c).  In fact, they commonly “overlook” this basis for an earlier effective date when Veterans find new military service records or military treatment service records.
  • Show that the VA should have granted an earlier claim date based on the “implicit denial” doctrine. sThe VA doesn’t have to go digging through your C-file to find every viable claim. However, if a claim is “reasonably raised” by the record, then the VA’s failure to address it could be considered an “implicit denial” of that claim
    Here’s how that might work.

The treating physician’s records are replete with diagnoses of an ischemic heart disease.
However, in the ratings decision, the VA fails to address the ischemic heart disease, even while granting Service-Connection for the Diabetes based on Agent Orange Exposure.

A claim like this might be “reasonably raised” by the record.  In fact this scenario occurs very frequently.
While granting one claim, the VA turns a blind eye to a fairly obvious claim in the record that the Veteran may or may not have specifically asked for.  Most commonly this occurs with secondary conditions – conditions that the medical record clearly indicates are caused by the service-connected condition.
This happens because the bureaucrats deciding VA claims have little or no medical knowledge or training, and are punished for thinking outside the box.

The BVA and the CAVC are going to look at a couple factors in analyzing the implicit denial doctrine:  relatedness of the claims, the timing of the claims, whether the ratings decision (or other adjudication of the Veterans Benefits claim) refers to the condition in a way that suggests it was denied, and whether the Veteran was represented or acting pro-se.

Remember, there are only 2 paths to an Earlier Effective Date – a CUE claim (or a Motion to Revise the Effective Date based on Clear and Unmistakeable Error), and as a legal basis in a current and pending appeal.

John Dohrle will discuss the Benefit of the Doubt Rule in VA claims

 
John provide expertise and assistance to world renowned neuro-radiologist Dr. Bash in the performance of conducting independent medical opinions to support veterans’ disability claims with the Department of Veterans Affairs. Benefit of the Doubt Rule When it comes to the Benefit of the Doubt doctrine, the statute is 38 USC § 5107(b). That statute says: ?The [VA] shall consider all information and lay and medical evidence of record in a case before the [VA] with respect to benefits under laws administered by the [VA]. When there is anapproximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the [VA] shall give the benefit of the doubt to the claimant.
Sourced through Scoop.it from: www.blogtalkradio.com

Tinnitus – VA Disability Claims » HadIt.com Veteran to Veteran

VA disability claims for noise-related hearing loss or tinnitus, there are certain things you’ll want to do to help your case: Provide detailed statements that explain the noise exposure you experienced during your military service. Cite the sources of the noise such as the machinery you used or the environment you worked in. Cite the duration of the exposure, and explain the type of hearing protection available for use (including no protection).

Sourced through Scoop.it from: www.hadit.com

Tinnitus – VA Disability Claims »

VA disability claims for noise-related hearing loss or tinnitus, there are certain things you’ll want to do to help your case:

  1. Provide detailed statements that explain the noise exposure you experienced during your military service.
  2. Cite the sources of the noise such as the machinery you used or the environment you worked in.
  3. Cite the duration of the exposure, and explain the type of hearing protection available for use (including no protection).

Sourced through Scoop.it from: www.hadit.com

4 Things Veterans Should Know about VA Sleep Apnea Disability Claims

True story. And I’ve been getting asked these questions for years. On top of that, for about two years, I noticed at my VA Benefits law firm and on the Veterans Law Blog that Veterans of all eras were seeking my help – from Vietnam to Cold War to Afghanistan and beyond – appealing their VA Sleep Apnea disability denials. In short, I was seeing the sleep apnea disability hit the Veterans community like a typhoon! So a couple of years ago, I started trying to figure out WHY the sleep apnea disability was such a problem in the Veterans community. – Chris Attig Veterans Law Blog

I get asked more questions about how to file and win a Veterans Affairs sleep apnea disability claim than almost any other topic in all of VA Benefits Law.

Chris Attig Founder: Veterans Law Blog

Trust me when I tell you this: a VA Sleep Apnea disability diagnosis has little or nothing to do with obesity and neck girth. In the end, I wrote a book about how to claim and service connect the sleep apnea disability through the VA. But I also learned a few extra things that I would like to share with you about the VA Sleep Apnea Disability claim.  And that’s what today’s video is all about:

I asked:

  • Why were so many Veterans seeking service connection for sleep apnea?
  • Why was sleep apnea affecting Veterans across all generations
  • Why was it so hard for so many Veterans to win their VA sleep apnea disability claims?
  • I talked to doctors (cardiologists, pulmonologists, sleep specialists, and more) about the three different types of sleep apnea disability diagnoses.
  • I talked to hundreds of Veterans (from just about every era) and looked at dozens of their C-Files to see if I could figure out why some Veterans won their VA Sleep apnea disability claims, and others did not.
  • I read just about every BVA Decision I could find on VA Sleep Apnea Disability appeals for a whole year.

Do you have questions about how to service connect sleep apnea claims?

You aren’t alone.  Winning a VA claim to service connect sleep apnea is hard.  Winning a VA Sleep Apnea is much harder.  In fact, winning your VA sleep apnea claim can feel like you just led your team to victory in the World Cup.

It’s almost as much work and can often take as much dedication. Veterans ask me more about sleep apnea than any other question about VA Benefits Law.  Closely followed by PTSD, Hearing Loss, Tinnitus, and TDIU.* Can I service connect sleep apnea without a sleep study in service?

* What if it wasn’t diagnosed until years after service –  can  I service connect it then?* Can Agent Orange cause Sleep Apnea?  What about PTSD?* How do I appeal the VA’s denial of my Sleep Apnea? I got so many questions that I began to do a lot of research into how to service connect Sleep Apnea claims and what is happening with Sleep Apnea in the Veteran’s community.

Here’s 4 lessons I learned that I want to pass on to you – if you can really learn and understand these lessons, you will have the power to really improve and service connect sleep apnea claims and appeals.
1: Sleep Apnea is a Killer
2: Sleep Apnea is affecting a LOT of Veterans
3: The VA & BVA really struggle to Service Connect Sleep Apnea claims
4: More Veterans Should be Able to Service Connect Sleep Apnea

Lesson #1: Sleep Apnea is a Killer.

There are three things that the human body cannot live – or function – without Blood/Oxygen, Food/Water, and Sleep.

You can lose a kidney and live a full and complete life.  You can lose your arms and legs and still survive.

But if your body cannot get sleep, you will die.  In fact, sleep deprivation is a common form of torture, as many of us know all too well. That’s what Sleep Apnea does – while you are sleeping, you stop breathing.

You cut off oxygen to the brain and blood, and other body systems break down.

If you are lucky, you start breathing again. Not a lot of VSOs or advocates get this when helping a Veteran file aVA Claim. They think of Sleep Apnea as a disease of the obese, and then they tell them one of the big Fairy Tales about VA Claims.

Lesson #2: Sleep Apnea is affecting a LOT of Veterans.

In the year I spent researching the Sleep Apnea Field Manual, I learned that 39 medical conditions – common among Veterans – can cause or aggravate sleep apnea.

39 Medical Conditions!!

Here are just a few:

Here are a few examples of how Sleep Apnea has affected Veterans from all different eras of service:*. Don D. (he asked me not to use his real name) served mostly during the Cold War and was in the best physical shape of his life – he was an avid weight-lifter.  That is until he damaged his knees in service and had to get a knee replacement at a military hospital.  After that knee replacement, he could no longer lift weights; the sudden weight gain that resulted caused his obstructive sleep apnea.* Several Desert Storm, OIF, and OEF Clients have had Traumatic Brain Injuries which interfere with how their Nervous System works and as a result, have a different kind of Sleep Apnea (oversimplified, where the brain’s signals to breathe don’t make it through to the lungs).* Many Vietnam Veterans exposed to Agent Orange suffer from sleep apnea.  They are ALL experiencing a “Perfect Storm” of Sleep Apnea problems: breathing disorders, mental health conditions, heart conditions, and diabetes are all causing an epidemic of Sleep Apnea in our Vietnam Veterans.No wonder Sleep Apnea is affecting so many Veterans – sleep apnea can be the result of other disorders or medical conditions.

Lesson #3: The VA & BVA really struggle to Service Connect Sleep Apnea claims.

I believe that the VA and BVA do not take Sleep Apnea seriously.  I think that far too many raters and BVA judges think of sleep apnea as “made-up medicine.”

Perhaps they’ll have to spend a night with someone who suffers from obstructive sleep apnea, hear the suffocating snoring, experience the fear that the person will stop breathing altogether, and continue to not take seriously claims for sleep apnea. Or perhaps when they realize that Sleep Apnea is going to be as big an issue for our current generation of Veterans as Agent Orange-related conditions are to Vietnam Veterans, they will take it seriously. Either way, Veterans have an uphill fight to connect their sleep apnea service.

Here’s a Statistic that will shock you:

From April 2013 to April 2014, the BVA denied  76% of Veterans’ Sleep Apnea appeals. Translation: 3 out of every 4 of you will see your sleep apnea claims and appeals denied…unless you learn how to prove your Sleep Apnea Claim the right way.

Lesson #4: More Veterans Should be Able to Service Connect Sleep Apnea.

I spent nearly a year researching Veterans and their Sleep Apnea claims.  I talked to several doctors and sleep experts.  I read hundreds of cases. I talked to hundreds of Veterans and read their C-Files to see where they went wrong.I learned that to win your Sleep Apnea claim, you are going to have to put your Sleep Apnea Claim together right.

This is where I come in.  I can teach you how to do that.  I can teach you:* HOW to prove your  Sleep Apnea Claim – for any of the three types of Sleep Apnea you have.* The EASIEST Way to prove Sleep Apnea.* WHAT evidence to use and which path to Service Connection to use.* WHERE to get the Lay Evidence that will give REAL POWER to your Sleep Apnea Claim.* To prove your Sleep Apnea is service connected… without a sleep study in the military?* The importance of a medical expert opinion in your Sleep Apnea claim.  (In many cases, a medical expert report or opinion may be crucial to success).* The SPECIFIC EVIDENCE you will need to prove another medical condition caused your sleep apnea* How the VA will rate your sleep apnea condition after granting Service Connection.

How can you learn more about these things?  Check out the Sleep Apnea Field Manual.  There are three ways to get it:

  1. Get an eBook version of the Sleep Apnea Field Manual
  2. Get a paperback real book version of the Sleep Apnea Field Manual
  3. Check out this VA Sleep Apnea Field Manual Package and get the knowledge you’ll need to take back the power in your VA Sleep Apnea claim.

Veterans Attorney and Advocate Videos

Chris Attig – Atting Law Firm


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New Rules for VA Claims As Of March 15, 2015

If you file a claim after March 15, 2015 new rules apply.
Questions to answer
  • What are all these terms
    • FDC
    • DBQ
    • Standardized Forms
      • There is now only one form for filing each benefit – compensation, pension and dependency indemnity compensation and one form for submitting an appeal for a compensation claim.
    • Intent to File (Formerly informal claim, rules have changed)
  • Ways To File A Claim
    • File Online – When filing a claim for compensation, the fastest and easiest way to file is electronically through eBenefits.
    • Paper Filing
      • If you are a Veteran filing for compensation, you must now use VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits.
      • If you are a wartime Veteran filing for a needs-based pension, you must use VA Form VA Form 21-527EZ, Application for Pension.
      • If you are the survivor of a Veteran filing for dependency and indemnity compensation (DIC), survivors’ pension, and/or accrued benefits, use VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits.
      • If you plan on appealing your claim’s decision, VA will provide you a form. This is called the Standard Notice of Disagreement, or VA Form 21-0958. If you receive a compensation decision on or after March 24, 2015 you will have to use this form if you want to appeal. Those wanting to appeal pension and survivors benefits are not required to use the standard NOD at this time.

The Department of Veterans Affairs (VA) is working to make filing claims and appeals as fast and easy as possible. Beginning Tuesday, March 24, 2015, claims and appeals must be filed using the appropriate form. Standardizing forms will ease frustration among claimants, make claims processing more efficient and help VA reach more accurate decisions.
There are three major actions that will require a specific form or standardized process: Intent to File, claims applications, and Notice of Disagreement.
When filing a formal claim, the following forms should be completed and submitted to VA either electronically via eBenefits (ebenefits.va.gov) or the Stakeholder Enterprise Portal(sep.va.gov), or by mailing the completed paper form to VA:

  • For disability benefits, applicants must now use VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits.
  • To apply for needs-based pension, use VA Form 21-527EZ, Application for Pension. To file a claim for dependency and indemnity compensation (DIC), survivor’s pension, and accrued benefits, claimants should complete VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits .

Applicants who are not ready to file a claim for disability, but wish to preserve a date of claim while  gathering evidence and completing the necessary application form should use one of the following three methods to communicate an intent to file a claim to VA:

Finally, Veterans filing a Notice of Disagreement with a compensation decision should use VA Form 21-0958, Notice of Disagreement. Veterans and their representatives currently use the form on an optional basis. However, beginning March 24, 2015, Veterans must use this form when VA provides the form with a decision notice letter. Veterans and survivors will not be required to use a standardized notice of disagreement form for other types of claims (i.e., pension or survivors benefits) at this time.
If you are unable to download these forms from va.gov/vaforms/, call 800-827-1000 to have the correct form sent to your home.
Requiring standard forms will help VA more quickly identify what the applicant is claiming and gather the evidence required to process the claim or appeal. Standardized forms are a key component of VA’s transformation, which will help achieve the Department’s goal to eliminate the backlog in 2015.