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d1ray
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About d1ray
- Birthday 07/21/1949
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I have recently learned that the BCNR upgraded my discharge to General (Under Honorable Conditions). This is under MILPERSMAN 1910-164 (BIOTS); the reason is Secretarial Authority and the code is JFF. My BVA hearing Remanded the matter in October 2019 awaiting the decision from the BCNR. My questions are many at this point. To start with, will this have to go back to the BVA or will I be rated by the RO since I now have the discharge upgraded and two diagnosis along with the Advisory Opinion from the BCNR and my stressor is in my medical record. Or will I still have to go through a C&P exam?
Next, in 2003, I filed for compensation and was denied. They stated;
My current claim has been open since August 2013 and I've been appealing ever since it was denied. I have been reading about 38 CFR 3.156(c) and wanted to know that since I have both NEW and MATERIAL evidence, could I get an EED to the 2003 date? Apparently, I filed a claim prior to 2003 since they are saying that it 'has not been successfully reopened'. Could it be that I can have an EED earlier that?
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Does the effective date after a discharge upgrade prevent an earlier effective date in a reopened claim such as mine from 2003? Under 38 CFR 3.156(c), will it not go back to the date of filing?
According to 38 USC 5110, it appears the EED would go no further back than 1 year from the effective date of the newly awarded claim. How does that work?
(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.
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Effective dates are very difficult to determine, since you posted that you have a pending claim with BVA it is even more difficult to say. I do not want to mislead you, it is really up to BVA to make that determination. What I can do is share what happened to me. This has nothing to do with an upgrade just an effective date. I filed an original claim in 1998, it was denied and I filed a NOD. Around 2005, I reopened my claim and it was denied again and I filed a NOD and this time the VA processed it and my claim went to BVA and then to CAVC. The CAVC remanded my claim and then the BVA granted my claim back to 2005. I then filed a new NOD asking for an EED back to 1998. The VA denied my NOD but BVA granted it back to 1998 because that was When I filed my original claim and my claim is still pending. So I know it can work
