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Earlier Effective Date ?

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militarynurse

Question

The situation: After appeal using a lawyer, a compensation claim is remanded back to the RO by the CAVC and service connection was then finally granted by the RO but with an effective date inexplicably years after the original claim was filed. A NOD was not timely filed for the earlier effective date (EED).

Question: 1) Is the wrong effective date a misapplication of law and hence a CUE?

2) Since the time for a NOD has run out, is there any remedy to obtaining an EED after that point?

The only issue is for obtaining an earlier effective date back to the date the original claim was filed.

Keeping this simple, isn't the VA supposed to use the original filing date as the effective date of the claim?

Any assistance appreciated.

Edited by militarynurse
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By not filing the NOD, you agreed with the substance of the rating. The only way to revisit this as CUE is to apply the CUE test. Three prongs must be met and each one cannot be wishful thinking. They didn't make Motions for Revision(CUE) easy for one simple reason. VA hates them. They consider them sour grapes.

Rule one: You feel your effective date is inncorrect. For that to be, either the correct facts as they were known, were not before the adjudicator; or the law, as it was written at the time was incorrectly applied.

Rule two states you must abide by the law as it was written at the time of your claim. A newer precedential case after your grant cannot form the basis for your CUE.

Rule three is the simplest but also the trip wire: Would it have manifestly changed the outcome if the mistake was not committed?

Then the takeaways begin.

Benefit of the doubt is not for application. Either the decision was undebatably correct... or it wasn't.

Failure of the duty to assist cannot be CUE.

Unless there is not even a shadow of doubt that the mistake was blatant, then the decision stands. (the reasonable minds theory)

Trying to rehash the evidence via CUE is not permitted

It would appear that VA is saying you qualify for the grant of service connection but the evidence does not prove conclusively that you were entitled to it until the date they awarded it for your effective date. If you filed with evidence that clearly evinced a right to X% on _______ ___, 200_, and VA incorrectly awards you a much later date, that is CUE as long as the evidence was unarguable at the time of filing. That would fall into the category of the correct evidence, as it was known, was not before the adjudicator. The other two prongs are a given in that case assuming they didn't change the law in Part 4 concerning your disability.

Here's Caffrey on the duty to assist to give you an idea of how the Court can sometimes kick our teeth in too. http://asknod.wordpress.com/2012/01/15/cue-failure-in-duty-to-assist/

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AskNod, Thanks for the info. Any chance you can distill all that down into a simpler answer*?

BTW, I'm halfway through reading your book, ( *Dick and Jane speak - page 90. ). Some good advice in there I wished I knew back before I learned it the hard way.

Edited by militarynurse
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  • HadIt.com Elder

Was the award based on evidence that was in the governments posession at the time a decision was rendered? If so you have other avenues to get your retro.

Basser.

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To distill the answer into DickandJanespeak, I need the ingredients. Did you have a lawyer? What disability. What date of filing. What date of grant. What evidence was submitted, etc. I'm shooting from the hip with the minimal amount of information you choose to share. If it was remanded back from the CAVC, it would require a grant from the BVA from whom it was appealed. The RO was merely the bean counter and rated it following the grant and remand for rating. The BVA established the parameters of the win, the effective date (maybe) and the rationale for it. The RO merely implemented it. Give me a citation number and a docket from the BVA win so I can ascertain the depth of the grant. It may be the RO chowderheads managed to bungle it. You have to admit they're adroit at that particular endeavour.

On the obverse, I see you getting a new C&P when you won at about the time the remand descended to your RO. Could be they wrongly granted from the date of your new C&P rationalizing that this was the first instance in which you had proven entitlement to said rating and percentage. VA does things like that to artificially arrest the development and normal progression of your claim on the off chance you'll go away. I just had a case similar where the BVA granted and the RO gave the gentleman a 20% rating which is where he was medically when he first filed in 2002. His VSO forgot to do the Form 9 and the claim died. He refiled in 2006 but did not get a new C&P. After his win, he filed his NOD and got the new C&P where he was correctly rated at 100% P&T. Fortunately he had enough documentation to get the P&T all the way back to 06 but VA wasn't about to agree to it until they were proven wrong. Can it be you were in a similar situation and failed to file that NOD? As I say, I don't have enough information to see it yet.

My kingdom for ESP.

a

clear prop

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Basser, Thanks for the reply. As the claim is based on a single traumatic event, ( the evidence of which the VA had in it's possession at the time their much delayed grant of service connection was rendered ), what are those other avenues to get my proper retro you mentioned?

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