Secondary Conditions: Knowledge is power in VA Disability Claims (General) Forum

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Secondary Conditions: Knowledge is power

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SonsOfLiberty

Secondary Conditions: Knowledge is power

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Posts: 68

Feb 18 11 12:24 PM

Tags : secondary, condition, knowledge

I would like to know if my assumptions of secondary conditions are correct:

1) Caused or aggravated by a service connected (primary) condition

2) Secondary conditions have an effective date to the date the primary service condition was established, in terms of compensation.

3) A condition caused or aggravated by the secondary condition, would not be a tertiary condition, but a secondary condition to the original (primary) service connection condition.

I'm sure many vets here, including myself, would like to know because knowledge is power! smiley: smile

Cruiser stated a while back:

38 CFR 3.310 says this about secondary service connection:

"When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition."

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jameschap

#1

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Posts: 1555

Feb 18 11 12:56 PM

you got it.

The mental and physical pain I feel reminds me,.. I'm still alive.

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kadena

effective dates

#2

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Posts: 401

Feb 18 11 1:30 PM

Generally the effective date is date of claim for the secondary condition , not necessarily the date service connection was granted for the primary condition.

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cruiser

#3

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Posts: 17625

Feb 18 11 1:58 PM

kadena wrote:

Generally the effective date is date of claim for the secondary condition , not necessarily the date service connection was granted for the primary condition.

While that is true, the various definitions of "date of claim" allow for this to be dates other than the date that VA receives the claim. As I'm sure you know, the "date of claim" (effective date) for an original claim for something can be very different from the date of claim for a claim for an increased evaluation for an existing service connected condition. For example, if you are already service connected for heart disease and you have a heart attack, the "date of claim" for an increase will be the date that you had the heart attack if the request for increase is received within one year of that date.

With that in mind, a claim for secondary service connection should be handled under the same effective date regulation for a claim for an increased evaluation for the primary condition rather than an original claim for the secondary condition. I was never really aware of this until I attended a briefing by BVA years ago when I was a DRO.

For example, let's say that someone is service connected for heart disease and has a heart attack. As long as the claim for increase for the heart condition is received by VA within one year of the heart attack, even if treatment was at a private hospital, the effective date for the increase goes back to the date of the heart attack. The key is that the claim must be received by VA within one year of entitlement to the increase arising.

This same principle applies to a claim for secondary service connection. If the claim is received by VA within one year of the date that the medical evidence shows that entitlement arose, the effective date should go back to that date.

In most cases the claim isn't received within one year of the date that entitlement arose so this becomes a moot point; however, in those cases where it does apply, as a VSO I make it a point to put this into the request for increase when I file the claim for my clients because I know that 99 out of 100 Rating Specialists will miss it because they have never encountered it or thought about it.

Cruiser

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Patrick428

#4

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Posts: 5262

Feb 18 11 2:40 PM

Go Tar Heels!
Closet Vols Fan

Cruiser,

Lets say you develop kidney failure Stage 3 at present because of long term SC diabetes type II and extended use of NSAIDS for 3 years (Ibuprophen 1800 mgs a day) administered by a PCP at a VAMC. I have two claims I wish to file to have on record each is different as I have Parkinson's Disease and Stage 3 Kidney failure. I am 100% P and T. The doctor feels this is from diabetes which is the main cause of kidney failure and the extended use of this NSAID, How would one write this up? I have had type II diabetes for over 20 year. I had many medications changes and at present the one I am on currently is keeping my glucose balanced. However, the damage has been done.

I would like your advice in this matter, or anyone who can let me know what is the best way to handle this.

Patrick

Vietnam 1965-66 and 1966-67 Marine Corps
Two Purple Hearts, Bronze Star w/Combat Device, Combat Action Ribbon
Ph.D. Clinical Psychology (retired)
C and P and Social Security Examiner
100% P and T

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catlover

#5

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Posts: 364

Feb 18 11 2:43 PM

I have a question on the issue of effective date on a SC condition. There was evidence in my file as well as on a C&P exam conducted in May of 08 regarding my L. Shoulder. I did not file for a claim-rather the RO came to me and requested info. The SC was granted and the effective date was Apr 09 (when RO came to me). I filed an NOD on this issue as I felt it should have been effective May of 08. The BVA judge increaed my rating on the Shoulder but did not address the effective date. Would my effective date go back to 08-as evidence existed in my file and SSD paperwork regarding the L. Shoulder? I appreciate your comments.

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XVIIIAirborne

#6

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Posts: 298

Feb 18 11 2:56 PM

This is a question I have been wanting to ask for some time. In my situation, I am service-connected for my low back as my primary condition. Recently, I have been granted service-connection for neurological secondary problems. I have two claims pending for an increase to my primary low back condition, and filed for secondary conditions with different dates.

According to what I understand, an effective date can be dated from my increase claim for my primary back condition (if the medical records shows the secondary condition warranted a rating back to this date)? Is this correct? Such as in my case bowel and bladder, my medical records shows that these problems have existed since my claim for increase for my lower back. If VA has granted my claim for Bowel and Bladder only since the filing date for Bowel and Bladder, what should I do to try and get the correct earlier effective date???

Any help please.

Airborne!

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cruiser

#7

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Posts: 17625

Feb 18 11 3:17 PM

OK you guys are really distorting what I said. Let me address a couple of the questions.

There was evidence in my file as well as on a C&P exam conducted in May of 08 regarding my L. Shoulder. I did not file for a claim-rather the RO came to me and requested info.

Evidence of what? Evidence showing the mere existence of something means nothing. Was their evidence in the file showing that you were claiming that the shoulder condition was due to service, or was there merely evidence of a shoulder condition? In other words, this "evidence" must contain something indicating that you want to claim service connection for this condition. What was the earliest date that the evidence in your file shows that you either think that the shoulder condition is due to service or that you intend to file a claim for service connection for the shoulder?

Actually this question has nothing to do with this thread in which the issue is secondary service connection.

According to what I understand, an effective date can be dated from my increase claim for my primary back condition (if the medical records shows the secondary condition warranted a rating back to this date)?

No, that's not what I said. If you file a claim for secondary service connection within one year of that condition arising as documented by treatment records, the effective date can go back to the date that the condition arose.

For example, let's say that you are service connected for a knee condition and as a result of that service connected knee condition your knee gives way and you fall, breaking your arm. You are taken to the hospital and treated for the broken arm. Entitlement arose for that secondary condition, the broken arm, when you were taken to the hospital for treatment. If you file the claim within one year of that date and submit the treatment records, the effective date for secondary service connection can be retroactive to that date.

Like I said, this doesn't apply for most claims since in most cases the entitlement arose for the secondary condition more than a year prior to a claim being filed. Please don't try to read more into this than is there.

Cruiser

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SonsOfLiberty

#8

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Posts: 68

Feb 18 11 3:22 PM

Here is some more info related to the topic-

38 CFR 3.310 DOC View:

http://benefits.va.gov/WA...R/BOOKB/PART3/S3_310.DOC

FYI:

I sent this along with my claim

VCAA Duty to Assist Request

I respectfully request the Veterans Administration to fully and sympathetically review and develop my claim. Please take into consideration any and all physical and mental medical conditions that are presented, inferred, or implied; in determining all potential claims raised by the evidence, applying all relevant laws and regulations.

Thank You

_______________________(signature)

I know this is raw, but so am I. smiley: laugh

Just one question. If they deny my claim that shows a secondary connected disability because I did not OFFICIALLY FILE for a secondary condition, do I have a CUE? It's the raters job to follow VCAA duty to assist. I just want to reassure myself. Thanks much.

Edited 2 times by SonsOfLiberty Feb 18 11 3:31 PM.

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cruiser

#9

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Posts: 17625

Feb 18 11 3:35 PM

SonsOfLiberty wrote:Just one question. If they deny my claim that shows a secondary connected disability because I did not OFFICIALLY FILE for a secondary condition, do I have a CUE? It's the raters job to follow VCAA duty to assist. I just want to reassure myself. Thanks much.

If VA denies your claim then you did officially file, otherwise there wouldn't be a claim to deny. Your question doesn't make sense to me.

Cruiser

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SonsOfLiberty

#10

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Posts: 68

Feb 18 11 4:22 PM

"If VA denies your claim then you did officially file, otherwise there wouldn't be a claim to deny. Your question doesn't make sense to me."

Cruiser

Let me rephrase, If the VA overlooks a verifiable secondary connected disability and later state that the reason was because I did not submit supplemental claim for compensation (VBA-21-526b-ARE) due to secondary disabilities, do I have a CUE?

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cruiser

#11

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Posts: 17625

Feb 18 11 5:03 PM

SonsOfLiberty wrote:
Let me rephrase, If the VA overlooks a verifiable secondary connected disability and later state that the reason was because I did not submit supplemental claim for compensation (VBA-21-526b-ARE) due to secondary disabilities, do I have a CUE?

Why don't you just give the facts because there is no one size fits all answer to something like this.

Cruiser

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XVIIIAirborne

For Cruiser

#12

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Posts: 298

Feb 18 11 8:43 PM

cruiser wrote:

According to what I understand, an effective date can be dated from my increase claim for my primary back condition (if the medical records shows the secondary condition warranted a rating back to this date)?
No, that's not what I said. If you file a claim for secondary service connection within one year of that condition arising as documented by treatment records, the effective date can go back to the date that the condition arose.

For example, let's say that you are service connected for a knee condition and as a result of that service connected knee condition your knee gives way and you fall, breaking your arm. You are taken to the hospital and treated for the broken arm. Entitlement arose for that secondary condition, the broken arm, when you were taken to the hospital for treatment. If you file the claim within one year of that date and submit the treatment records, the effective date for secondary service connection can be retroactive to that date.

Like I said, this doesn't apply for most claims since in most cases the entitlement arose for the secondary condition more than a year prior to a claim being filed. Please don't try to read more into this than is there.

Cruiser

Ok, I am still confused. Here is my situation.

I filed a claim for an increase to my primary service-connected low back disability in April 2009.

In June 2009, my C&P examination for my increase to my lower back showed bladder problems:

(Urinary Frequency? Yes. Frequency (Daytime Voiding Interval):< 1 Hour

Nocturia? Yes, Nocturia (# of voidings per night): 5

Is Etiology of these symptoms unrelated to claimed disability? No.

I then filed a claim for Bladder problems secondary to my service-connected low back in September 2009.

Then a C&P examination and test in 2010 showed the urinary frequency daytime voiding interval of < 1 hour and Nocturia #of voidings per night to be accurate. I was then granted service-connection for Bladder problems secondary to my low back at 40% with the effective date of September 2009.

Now, should my Bladder problem's effective date be June 2009 since it was less than one year prior to my Bladder claim date of September 2009?

Or, is the September 2009 effective date correct.

Thanks for your knowledge.

Airborne!

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adder187.vetbenefits

#13

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Posts: 1013

Feb 18 11 9:06 PM

Neurological complications are to be evaluated separately from the back disability as noted by Note 1 under the general formula for rating diseases and injuries of the spine.

Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

You should have received benefits regardless of whether or not you filed a claim based on this provision and likely from a date earlier than that which was assigned. The appropriate effective date is something I can't really answer without seeing all of the evidence, but based on the information you have presented I believe you should file a Notice of Disagreement challenging the effective date.

adder

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catlover

#14

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Posts: 364

Feb 18 11 9:33 PM

Cruiser-when I put SC I meant Service Connection not Secondary. There is evidence in my Medical Board Report regarding the L. Shoulder (chronic bursitis) from 1987. I did not file a formal or informal claim for the L. Shoulder. I received a VCAA notice requesting informaton on the L. Shoulder (out of the blue). I provided all information required -had a C&P exam-granted Service Connection effective April 09 (when VA came to me). The C&P exam I had in May of 08 stated I was on SSD and retired from work due to my L. Knee and L. Shoulder and the Doc wrote a separate letter stating I could not maintain employment and she condsidered me Total and Permanent. All I was trying to ask if "Would or should my effective date for Service Connection on the L. Shoulder be May of 08 vs Apr 09. I do appreciate your comments.

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SonsOfLiberty

#15

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Posts: 68

Feb 18 11 11:48 PM

cruiser wrote:
SonsOfLiberty wrote:
Let me rephrase, If the VA overlooks a verifiable secondary connected disability and later state that the reason was because I did not submit supplemental claim for compensation (VBA-21-526b-ARE) due to secondary disabilities, do I have a CUE?
Why don't you just give the facts because there is no one size fits all answer to something like this.

Cruiser

I get you. I just get frustrated and upset when I talk about it. So my SC condition is my knee instability and pain. The psychiatrist I saw directly connected depression to my knee problems, due to immobility and pain. Funny thing is that I denied being depressed. So I asked the VA to "fully and sympathetically review and develop my claim. Please take into consideration any and all physical and mental medical conditions that are presented, inferred, or implied; in determining all potential claims raised by the evidence, applying all relevant laws and regulations." I just recently found out about the knee/depression connection so I did not file for secondary depression with the VBA-21-526b-ARE form. I feel I have inferred secondary depression by providing medical records.

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XVIIIAirborne

#16

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Posts: 298

Feb 19 11 12:00 AM

adder187 wrote:
Neurological complications are to be evaluated separately from the back disability as noted by Note 1 under the general formula for rating diseases and injuries of the spine.

Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

You should have received benefits regardless of whether or not you filed a claim based on this provision and likely from a date earlier than that which was assigned. The appropriate effective date is something I can't really answer without seeing all of the evidence, but based on the information you have presented I believe you should file a Notice of Disagreement challenging the effective date.

adder

Thanks Adder. Should I file a NOD or can I simply write VA to consider this as new evidence and point out my previous C&P examination and the correct VA regulations? As Cruiser mentioned most rating specialist miss this when making their decision.

Again, thanks adder for your help. Also, thanks Cruiser for your help, as well.

Airborne!

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adder187.vetbenefits

#17

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Posts: 1013

Feb 19 11 12:58 AM

XVIIIAirborne,

Unfortunately a claim for reconsideration would do little to help here as this really isn't new evidence per se. You certainly may pursue a clear and unmistakable error request using failure to follow the applicable diagnostic criteria for evaluating neurological complications of the spine, but I'm unable to guarantee any success simply because I don't know all the facts in your case. Filing a Notice of Disagreement and allowing a Decision Review Officer to take a look at the claim via DeNovo review should allow for your claim to get a fresh look from an experienced decision maker and any additional compensation restored to you that should have been afforded by the prior determination. Hope this helps. Please let me know if you have any additional questions.

adder

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XVIIIAirborne

#18

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Posts: 298

Feb 19 11 1:23 AM

I agree with you adder in that this is not new evidence. I will try the NOD, when I actually receive the Notification letter of VA's decision.

Thanks for your help.

Airborne!

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SonsOfLiberty

#19

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Posts: 68

Feb 22 11 2:55 PM

I wish there was a sticky note regarding this matter. There are a lot of vets who are getting cheated out of benefits because they don't know the regulations. It is very unfortunate really. If anyone of you expert guys can create a sticky note regarding Secondary Conditions we would have a lot more empowered vets today than yesterday.

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DisapointedVet

Response to Cruiser

#20

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Posts: 3

May 7 12 5:19 PM

cruiser wrote:
OK you guys are really distorting what I said. Let me address a couple of the questions.

There was evidence in my file as well as on a C&P exam conducted in May of 08 regarding my L. Shoulder. I did not file for a claim-rather the RO came to me and requested info.
Evidence of what? Evidence showing the mere existence of something means nothing. Was their evidence in the file showing that you were claiming that the shoulder condition was due to service, or was there merely evidence of a shoulder condition? In other words, this "evidence" must contain something indicating that you want to claim service connection for this condition. What was the earliest date that the evidence in your file shows that you either think that the shoulder condition is due to service or that you intend to file a claim for service connection for the shoulder?

Actually this question has nothing to do with this thread in which the issue is secondary service connection.

According to what I understand, an effective date can be dated from my increase claim for my primary back condition (if the medical records shows the secondary condition warranted a rating back to this date)?
No, that's not what I said. If you file a claim for secondary service connection within one year of that condition arising as documented by treatment records, the effective date can go back to the date that the condition arose.

For example, let's say that you are service connected for a knee condition and as a result of that service connected knee condition your knee gives way and you fall, breaking your arm. You are taken to the hospital and treated for the broken arm. Entitlement arose for that secondary condition, the broken arm, when you were taken to the hospital for treatment. If you file the claim within one year of that date and submit the treatment records, the effective date for secondary service connection can be retroactive to that date.

Like I said, this doesn't apply for most claims since in most cases the entitlement arose for the secondary condition more than a year prior to a claim being filed. Please don't try to read more into this than is there.

Cruiser

10 months ago I specifically requested adding my shoulder as secondary to my service connected knees which both give out without notice. The VA verified the shoulder injury, I have been treated 5 times in the last year in the VA ER due to landing on my shoulder and was advised that their is no direct link between my service connected knee and my shoulder in my service record. A plain and simple denial, What sucks even more, is when I went to my medical evaluation, I was seen by a lousy nurse practitioner who refused to look at my shoulder because it was not on her list... My shoulder was was never evaluated at all. Go figure, the politicians spend the $$, they cut vet benefits so the VA finds their own loop holes or deny without evaluation hoping you'll just go away. Go Figure

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