Why did I get a final decision on a VA claim before the required medical exam the VA required was completed?

2024-03-03T00:53:42-05:00

2004 during my redeployment I wrote I had a constant cough, no action. 2015 I filed a claim because a RN was concerned and also wrote a letter for the claim. 2017 (circa) the claim was denied, I immediately filed an appeal. I hear nothing. Finally the PACT ACT comes, I question the VA if I need to file a new claim or am I automatically covered by the PACT ACT - no reply so I file a PACT ACT claim. I receive a decision on my appeal, I am granted, but now there is a question of when, is it the original filing 2015 or the PACT ACT filing? Now I receive a request for a medical evaluation. First VES is given my case, but then the wife has to go for cancer surgery so I got the whole farm w/animals to attend inform VES of this, they inform VA. 5 December 2023 I inform VES I am available for exam, hear nothing. Feb 2024 INTLSOS.OPS contacts me they now have my case and making a new appointment, made for 27 March in Hamberg, GE. 1 March I receive a letter I have been granted a service connection for asthma effective 10 Aug, 2022 with a 0 percent. How can they come to a decision before the exam they required to determine the claim is given and reported?

Response by SPC James Neidig made Mar 3 at 2024 2:14 AM

2024-03-03T02:14:34-05:00

You Can Get A Rating Without An Exam Under The Pact Act Because Of Presumptive Illness.
The Exam Will Determine The Severity Of Your Illness.
Even If You Are Only Given A 10% Rating You Will Be Paid Back To 10 August 2022 .
My Suggestion To You Is Go Get A VSO And Claim Everything You Can And Have Documents To Prove It Happened While On Active Duty.
I Served At Camp Lejeune/ New River Air station During The Late 70s Early 80s And Have Lymphoma, Severe Acid Reflux And Irritable Bowel Syndrome. VA Has Rated Me Because Of The Presumptive Illness Clause, I Am Already Rated 100% P&T Due To Other Medical Issues, But It Allows Me To Be Part Of The Class Action Suit.

Response by 1SG John Millan made Mar 3 at 2024 2:30 AM

2024-03-03T02:30:26-05:00

It's actually good, zero before an exam established service connection and gets you meds and a basis to move forward, then at keadt 10%, prob 20, with back pay to ETS date. Ask about sleep disturbances and a CPAP? What about TMJ and hearing loss?

Response by SrA John Monette made Mar 3 at 2024 7:23 AM

2024-03-03T07:23:29-05:00

If you had PFT (pulmonary function test) done recently, they can use that. If you think you rate higher, file a 526EZ

Response by COL Randall C. made Mar 3 at 2024 10:05 AM

2024-03-03T10:05:35-05:00

SGM Mikel Dawson, the short answer up front - it appears one of two things might have happened:
● The VA converted your pending appeal to a presumptive service connection which is why the August 10, 2022 date is the effective date of the claim (the date the PACT Act was signed into law).
● The claim you submitted under the PACT Act was treated as a separate claim.

There are some disconnects that you'll have to work through with someone that can look at your file (like a VSO representative) and see what was going on. Since you live in Germany, if you use the VA’s search page* and put in “EU” as the state, it will show five who reside there.

The disconnects are:
● The claim you submitted under the PACT Act (regardless if it was submitted as a new claim or a supplemental claim) should have been identified as duplicative of the one being appealed by the processing intake center. If so, it would have been added to the existing claims folder and you would have been notified. However, it sounds like the C&P exams are part of that claim ... which shouldn't exist.
● If your appeal was coincidentally granted six or seven years later, not long after you submitted a subsequent claim, then it would have the original claim date as the effective date .. not the effective date for PACT Act claims (that were filed within one year of the law being enacted).

Either way, what you're describing shouldn't be happening unless "the left hand isn't talking to the right hand" at the VA or someone screwed up.

Now, the biggest question is if this is something (the effective date) that won't matter to you? You have a service connected rating of 0% which is a non-compensable disability. There are future benefits you are eligible for a 0% rating and if you accept the 0% rating, then the information below about the possible impacts don't really matter.

However, if you DO feel that the asthma should have been rated higher because of the impacts, then you need to submit a NOD for both the rating and the effective date. Again, work with a VSO to get the details.

Back to the possible situation where the VA converted your appeal to a claim under the PACT Act. It shouldn’t have been done, but it sounds like the VA was doing that en masse for new presumptive conditions from the PACT Act. From the VA website:
Q: What if I have a pending claim for a condition that’s now presumptive?
A: You don’t need to do anything. If we added your condition after you filed your claim, we’ll still consider it presumptive. We’ll send you a decision notice when we complete our review.

However, 38 CFR § 3.303(d)* states that “Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection”.

Additionally, Section V.ii.4.A.1.i* of the VA’s adjudication manual states, “In some situations, different theories of entitlement allow for assignment of different effective dates. In such cases, consider each effective date rule when assigning an effective date and assign the most advantageous effective date that applies for the facts of the case.”

As such, your effective date should be the one from when you originally filed your claim as the appeal sounds like it was still active at the time, so the eligibility to the original date applied.
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* VA accredited organization/individual search page - https://www.va.gov/ogc/apps/accreditation/index.asp?
* 38 CFR § 3.303 (Principles relating to service connection) - https://www.law.cornell.edu/cfr/text/38/3.303
* VA Adjudication Procedures Manual (M21-1), Part V, Subpart ii, Chapter 4, Section A - Effective Dates - https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/ [login to see] 01018/content/ [login to see] 80492/M21-1-Part-V-Subpart-ii-Chapter-4-Section-A-Effective-Dates

OGC - Accreditation Search

Response by SPC James Neidig made Mar 3 at 2024 11:06 AM

2024-03-03T11:06:32-05:00

You Were Granted 0% Under The PACT Act Effective Aug. 2022 . Because Of A Presumptive Illness, Not Your 2015 Filing .
When You Go For Your Exam On 27 March They Will Determine The Severity Of Your Illness And Probably Give You A Higher Rating, Which Will Be Back Dated To Aug 2022 ,
Look Up The Presumptive Illness For The PACT Act And If You Have Any Of The Other Illnesses Covered, Inform Them At That Time, It Could Get You A Higher Rating.

Response by SrA John Monette made May 14 at 2024 3:10 PM

2024-05-14T15:10:59-04:00

File an 0995 if you disagree with the rating. If you file it within a year of the decision, if they increase the rating, it may go back to when you filed first if it has been continuously pursued