pdlaw2000

Back dating fight

4 posts in this topic

Ok, I first want to thank everyone for responding to my first question.  I appreciate it.  Before I ask my second question I want to be up front.  I am an attorney, but VA administrative law is not my area of expertise so I don't know shit about it.  

My resent claim is the same claim I made in 1995. I am guessing they are not going to back date any rating to then, but if I appeal that decision, will I be paid the increased rating while I appeal?  

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Need more information, first all if the claim was filed in 1995 and you are now getting the claim back from being process, then yes you can filed an appeal if it has been lees than an year, since the claim was decided.  if more than a year than the claim has to be filed either as an increased or reopen it with new material

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well it depends, and all of you more knowledgeable in the arcane arts of VA appeals correct me if i am wrong.

Normally with a claim you have 1 year to appeal a decision via Form 9 BVA or NOD with the DRO.  After that year you de facto "accept" the decision of the VA as valid.

However in cases where there is a CUE you can get an much earlier back date.  This usually rest upon the fact the VA had the evidence to make a favorable decision and grant you a rating but didnt.

For example i filed for PTSD in 2007 but was denied, i re filed in 2011 and was granted it.  I was a greenhorn in those years and in my 07 claim i had NO evidence at all (then again i didnt get a C&P either....)..... anyways.

example 1(what happened): i was asked to submit evidence and i didnt, so there was nothing to rate, i was denied.  If i appealed my EED in 2011 they would not have found a CUE present, because there was no evidence to indicate that there was PTSD present at the time, but there was in 2011 when i reopened the PTSD claim.

example 2: If i had been seen by a VA shrink and had been given a DX for PTSD but during my claim process the Rater either ignored or didnt see that exam note in my file i would have a case for CUE (clear and unmistakable error) since the evidence was there and they had access to it, but for some reason didnt use it in my claim. 

The evidence HAS TO HAVE BEEN AVAILABLE at the time of the original rating decision to be considered a CUE for an earlier EED date and it has to be evidence that would have resulted in a rating.  If you said "i have PTSD" at that time but was denied and 5 years later got diagnosed and the psychologist said "yeah it was present since you got back in 2005" that isnt CUE, because all the rater saw was your claim not the evidence of it.

Also, if you have "continuously prosecuted" your claim since the denial in 95' then you can get it.  By that i mean you got denied and have worked your way from DRO to BVA then CAVC back agin and round and round and filed all the appeals and appeals timely and within the windows to appeal you can get an earlier EED date.

I had claimed headaches in 2012 but they deferred my decision and i forgot about it, they did to and never mad a decision.  I reopened the claim in 2014 and they SC'd me back to 2012 because it had never been decided then and was in limbo but still "continuously prosecuted"

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The effective date is the later of the date you applied, or the facts found (the date the doc said you were disabled).  Dont even think of representing your self, or others, without at least reviewing:

1. The Cfile

2.  The Veterans benefit manual, there is a whole section on effective dates.  I counted 48 pages of information on VBM just on effective dates.  

There are special rules for "increased ratings" on effective dates.  There are also special circumstances when a visit to the doctor can be considered an increased rating for INCREASE.  

(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
(b)
(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.
(2)
(A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.
(B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.
(C) This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.
(3) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.
(4)
(A) The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.
(B) A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.
(c) The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.
(d) The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.
(e)
(1) Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.
(2) In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311 (b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.
(f) An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.
(g) Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.
(h) Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.
(i) Whenever any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of reopening of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.
(j) Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.
(k) The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.
(l) The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.
[(m) Repealed. Pub. L. 103–446, title XII, § 1201(i)(8),Nov. 2, 1994, 108 Stat. 4688.]
(n) The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

 

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