Effective Date?

[kent101]

Can I change my reopened claim effective date?

 

Edited February 2, 2017 by kent101

[kent101]

7 hours ago, broncovet said:

When in doubt, file the NOD.  

This is somewhat complex, and you probably need a lawyer.  There are many things going on here, and WE dont know all of them.  

An experienced lawyer can look at your file, and determine what is best here:

1.  38 CFR 3.156 "reopened claim"  (Likely)

2.  CUE  (less likely)

3.  Something else.  For example, your 1 year appeal period is tolled if Va did not send you notice of your rights to appeal, but that may not have applied in 2002.    Your attorney can look for more.  

     In all cases, Filing the NOD wont hurt you, tho there may be circumstances where you withdraw the NOD.  (For example, if you file a 3.156 and your earlier date is awarded, then the Nod becomes moot.  )

I filed my NOD. Here's what I said.

 

In 2003 I received my denial letter for PTSD. The denial letter said the reason for denial was "No Service Treatment Records could be located". In my 2016 award for PTSD my award letter says my service treatment records were used under evidence considered.

My service treatment records weren't received by the VA until 2005 from the service department. The only evidence I gave at the time of the initial claim was the label off the bottle of zoloft. I sent the label in with the compensation claim for PTSD in 2002. The label contained my name, the name of the military hospital(Blanchfield Army Hospital, Ft. Campbell, Ky.) and the dosage of the zoloft. I did receive mental health treatment before leaving the military and those STRs should have been used as evidence considered for my 2016 PTSD award.

I do believe according to 38 CFR 3.156 that I'm entitled to an earlier effective date since my service treatment records were used to determine my 2016 PTSD award. I would like an effective date back to my ETS date if I filed the claim in 2002 within that first year of my separation from the U.S. Army. If it was after the first year I would like my effective date to be back to 2002 when I initially filed the claim.

38 CFR 3.156(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records.
(3) 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 VA 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.

Edited February 28, 2017 by kent101
update

[kent101]

On 2/27/2017 at 6:33 PM, broncovet said:

When in doubt, file the NOD.  

This is somewhat complex, and you probably need a lawyer.  There are many things going on here, and WE dont know all of them.  

An experienced lawyer can look at your file, and determine what is best here:

1.  38 CFR 3.156 "reopened claim"  (Likely)

2.  CUE  (less likely)

3.  Something else.  For example, your 1 year appeal period is tolled if Va did not send you notice of your rights to appeal, but that may not have applied in 2002.    Your attorney can look for more.  

     In all cases, Filing the NOD wont hurt you, tho there may be circumstances where you withdraw the NOD.  (For example, if you file a 3.156 and your earlier date is awarded, then the Nod becomes moot.  )

 I filed a NOD and they sent me back a statement of case saying that I filed my claim years later than I thought I did. I was sure I remembered filing the claim a lot earlier, but I threw away the letter. So now I can't prove my case.

[kent101]

On 2/26/2017 at 4:33 AM, Berta said:

After thinking about this, I wonder if the VA had a duty to even obtain the STRs in 2002, because something major might have been lacking,like diagnosis or stressor letter??? Was this for a PTSD claim?

Did you get a C & P at that time?

When VA said,in 2002 decision,  they had no STRs did they state they attempted to get them from NPRC?

 

They claimed that not giving stressors was one reason. Also, they claim my case was filed years later than I thought. I was sure It was in 2002 when I filed, I don't think it would be worth going to the BVA. I threw away the denial letter so I don't have evidence. It was written on yellow paper. When the VA stop using yellow paper? I know now it's all written on white paper.

[Berta]

Have you requested a copy of your C file from your VARO?

Your C file might reveal not only the actual claim you filed in the past, it also might reveal that they did Not attempt to get your SMRs at that time....but should have.

When I got a  C file copy I found critical medical evidence the VA ignored ( my husband's autopsy)and even found a Peer review report they -Buffalo RO (and even the OLMA- VA office of Legal/Medical) told me had "never existed." ( They did have a copy of it)

It fully supported with a 4 page medical Peer FTCA Review opinion,done for the Regional VA Counsel-supporting  all of my lay medical malpractice charges.The RC wanted to settle with me within days of getting the report. Then the RC retired suddenly and so did the Cardio doc who did the Peer Review and then of course the Report disappeared too and I had to succeed on FTCA at the OGC-DC level without it.

C files can contain a wealth of surprises....unfortunately so can VA medical records too.

 

 

[broncovet]

I agree with Berta.  I wish I had money for everytime I submit something to VA, and they deny they ever got it.  It doesnt even matter that I have proof of mailing.  Yea, I can rebut their presumption of regularity in appeals, but that takes years and they know it.  So they get away with it every time.    So, I suggest you tatoo this on your arm to remember it:

 

Quote

You can not always trust what VA tells you. 

Once you remember this, you are half way there.  

[kent101]

4 hours ago, Berta said:

Have you requested a copy of your C file from your VARO?

Your C file might reveal not only the actual claim you filed in the past, it also might reveal that they did Not attempt to get your SMRs at that time....but should have.

When I got a  C file copy I found critical medical evidence the VA ignored ( my husband's autopsy)and even found a Peer review report they -Buffalo RO (and even the OLMA- VA office of Legal/Medical) told me had "never existed." ( They did have a copy of it)

It fully supported with a 4 page medical Peer FTCA Review opinion,done for the Regional VA Counsel-supporting  all of my lay medical malpractice charges.The RC wanted to settle with me within days of getting the report. Then the RC retired suddenly and so did the Cardio doc who did the Peer Review and then of course the Report disappeared too and I had to succeed on FTCA at the OGC-DC level without it.

C files can contain a wealth of surprises....unfortunately so can VA medical records too.

 

 

I didn't request the c-file yet. Should I send my form 9 in though? I just got the statement of case. They say I filed my claim 5 years later than I thought I did. If that's true then I don't think I have a case. I'm pretty sure I'm right about when I filed my claim but not 100% since they have me feeling a little confused now.