When you question your EED

[Berta]

I didn't know where to put this....these issues come up often as to EEDs.

Better EEDS-38 CFR 3.156© and CUE:

Every vet who was denied SC for anything that they finally award SC for should go over their older denial carefully

 

Chris Attig has an excellent article on 38 CFR 3.156 ©, in part the regulations state:

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 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;”

 

 

 

https://www.veteranslawblog.org/2-times-that-veterans-should-argue-for-an-earlier-effective-date/

 

We have discussed this regulation many times here but it bears repeating.

Of Course a CUE can garner a better EED as well…as long as the denied claim , for the same SC, was at a ratable level when they denied it.

A Re opened claim - 38 CFR 3.156 (a)  is far different as to the EED.

38 CFR 3.156(b) is pretty obvious as most of us do send in more evidence prior to expiration of the appeal date.

This is a long but good read of how the re opened claim did not garner this vet a better EED.

In Part:

“He stated that he had originally 

applied for service connection for a neck disorder in 

January 1996, and therefore the effective date for service 

connection should be February 1, 1996.  In a January 2008 

rating decision, the RO denied the Veteran's claim for an 

earlier effective date.  The RO explained that as the RO's 

original May 1996 denial of service connection was final, the 

law did not provide for an earlier effective date than May 

15, 2001 (the date the Veteran filed his petition to re-open 

his claim).”

 

VA was correct.

 

The veteran then claimed CUE on the 1996 decision but that CUE had not been adjudicated yet at the RO level so they claim was remanded.

 

https://www.va.gov/vetapp10/files1/1009109.txt

Here is the whole 9 yards on the three facets of 38 CFR 3.156

https://www.law.cornell.edu/cfr/text/38/3.156

Successful  better EEDS due to proving CUE in a past decision are also explained her in the CUE forum.

 

The regulations above make sense.

You must give the VA New and Material evidence under 38 CFR 3.156(a) to re- open a claim.

Your EED will be the date of the Re opened claim.

There are a few unusual exceptions to this regulations - very unusual – my DMII AO claim was one of those exceptions. I filed claim to re open  DIC claim in 2003 ,( had a 1151 DIC award), VA refused to re open,then after a battle they re- opened the claim and my EED was 1994.(DIC claim)

I already rattled off how that occurred here, and have never seen a similar re open case like it.

This regulations and also CUE ( 38 USC 5109A) are like the Watergate question…..

“What did the President know and when did he know it”. Same thing…what did VA know and when did they know it.

If a Re open awarded a claim that was denied in the past and was at a ratable level at that time (or should have been –if a Nehmer III issue- Footnote One)

then a CUE claim ,following the exact CUE criteria here, can bring a far better EED to the claimant, when filed on the older denied decision.

CUEs are not really “ claims,” they are frontal attacks on a past decision.That is why they do not fall under VCAA provisions. Lindsay V. Principi.

This EED subject comes up here often and it is worth while to read the 3 specific parts of the 3.156  regulations carefully to see how they might apply to any EED question you have.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited March 10, 2017 by Berta

[Berta]

https://www.law.cornell.edu/cfr/text/38/3.156

§ 3.156 New and material evidence.

(a)General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b)Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c)Service department records.

(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 theclaims 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:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention theveteran by name, as long as the other requirements of paragraph (c) of this section are met;

(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; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(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.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

Cross References:

Effective dates - general. See § 3.400. Correction of military records. See § 3.400(g).

[ 27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

[RickyDee]

Ok so answer me this. I went to a C&P and got rated for an illness that I never submitted a claim for. I was giving the rating of 30% for migraines. My medical records (MR) show that I complained about headaches since 1984. The headaches worsen to migraines in 1990. When I retired I didn't mention this to the doctor because like others I just wanted to get out. The C&P doc added this to my claim and I was awarded 30%. 

 

Will it be retro'ed back to 1990.

 

 

[Berta]

I would think the VA gave you the EED for the migraines as the date of the C & P exam, as that is when (as I understand this) entitlement arose.Or the date the doctor added this disability to your claim.

It all gets back to the Watergate question in the topic I put here.

However the "Date entitlement arose" can be searched at hadit as there is more info on the way that is determined.

An SSDI determination, awarded for the same disability ,when a TDIU claim is in progress,for the same disability , can often become the EED for the TDIU award, if VA knows of the SSDI award because that would be an independent medical opinion from SSDI as to when the entitlement arose.

 

 

[Berta]

This BVA case explains the date entitlement arose as well as the stuff searchable here.:

https://www.va.gov/vetapp15/files2/1509372.txt

 

[Tbird]

2 TIMES VETERANS SHOULD ARGUE FOR AN EARLIER EFFECTIVE DATE. – VETERANS LAW BLOG

In a previous post, I 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.

Read the article on veteranslawblog.org >

[Berta]

Thanks Tbird. Chris Attig has excellent info at his site!

We all need to check out his info!

I hope the VSOs and vet reps out there read it as well.