John Royal

whatttttt? That's awesome! And it's hot there! You so lucky!!!!!

I faxed my 3288 in 2 days ago and got a confirmation that it was received. I will give them a month and then it straight to Ms. Wentzel after that!

Wentzel, Mary Ann, VBASLOURMC <maryann.wentzel1@va.gov>
Jun 14 (8 days ago)   to me           Good afternoon Mr. 63Charlie,
 
I’m writing to let you know a copy of your VA claims folder, on CD, has been mailed.  Attached is a copy of the UPS tracking number. 
 
If you need anything else or have any questions, please let me  know.
 
Thank you,
 
MARY ANN WENTZEL
Management Analyst, Director’s Office
VA Records Management Center
St. Louis, MO 
 

Buck52:
Thanks for the info...I'm over 300 days right now?
Thanks,
Rootbeer22
 

Unfortunately a lot of us are running over  300D days  & counting
I am hoping mary ann wentzel will get the Ball rolling so-to speak.
When we request our cfile from the wrong people /wrong place that much longer to get it.
I would suggest to email Mary Ann @St Louis and have her to check the status of your c-file..I requested mine 2 times and the first date is well over 300 days closer to a year (not a word) I requested on Oct 1st 2015d she check the status and I should be getting it in July 2016  some time  if not she said to let her know.

OIC
Well maybe you will get it soon. I am hoping my comes in next month.
will be 9 months. since I requested the last one
Good Luck rootbeer

Buck52:
Just got a call from the National Personnel Records Center (NPRC) in St Louis., MO regarding my C-file Request. I was told that they currently have 75 people on 2 shifts working a backlog of 80,000 C-file Requests? He went on to say that they are training more people to come on board and help with the backlog. The rep also that a request for a C-File is a Privacy Act request and not a FOIA? So, the 20/30 day timeline rules for FOIA don't apply to Privacy Act Requests according to him so I'll need to verify that?  I said my main problem is that I had to file my NOD last week without the benefit of  having the opportunity to either review or challenge aspects of the C &P exams which determined some of the SC denials on my claim. He said that he was a veteran himself and could empathize with that problem? Anyway, he said that my C-File should be in my possession within the next 30 days---so we'll see?  I asked for a NOD/ DRO Review so it's going to be about a year or so anyway before they even look at my NOD paperwork?
Godspeed Rootbeer22

I emailed Secretary McDonald and had my C File within two weeks.

. The VA "interpreted" "Thou Shall not Steal" to mean "Stealing is not recommended 12% of the time".   Remember, this is where VA is spending our benefit/health care dollars...on US Supreme Court lawyers to fight Vets.  I thought VA was supposed to care for Vets, not fight them??  My solution is to fire 75% of the  lawyers who work for VA and hire doctors to cut the wait time, instead.  
The Veterans Affairs Department lost a Supreme Court battle in a controversial lawsuit that accused it of denying federal contracts to veteran-owned businesses. The high court ruled that the VA failed to comply with the law. On Thursday, the Supreme Court unanimously agreed that the federal government had violated the so-called “Rule of Two” when the VA awarded a contract for an emergency notification system to a company not owned by a veteran.
Read more ‘Systemic failures’ at Wisconsin Veterans Affairs hospital – Senate report The provision is part of the Veterans Benefits, Health Care, and Information Technology Act of 2006, which stipulates that only small veteran-owned businesses “shall be” considered when two or more are likely to submit reasonable bids for a major contract.
“The surrounding subsections of §8127 [section of the law] confirm that Congress used the word ‘shall’ in §8127(d) as a command,” the Supreme Court ruled. “The word ‘shall’ usually connotes a requirement, unlike the word ‘may,’ which implies discretion,” Justice Clarence Thomas wrote.
The VA’s decision to award the contract to an outsider was challenged in a 2012 lawsuit, Kingdomware Technologies v. US, which was filed by a permanently disabled US Army veteran. The complaint accused the government of thwarting the law, as the VA did not restrict competition using the “Rule of Two.”
The veteran petitioner had lost twice before, when two lower courts, the Court of Federal Claims and the US Court of Appeals for the Federal Circuit, ruled in favor of the VA.
In both cases, the judges ruled that the department was not required to use the “Rule of Two” in all contracting. The federal appeals court said that the VA did not have to comply with the rule if it awarded between 7 and 12 percent of all contracts to companies owned by disabled veterans.
READ MORE: Over 125,000 veterans denied benefits by the VA – report
The Supreme Court weighed in and reversed the decision.
“The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS [federal supply schedule],” Justice Thomas wrote.
The Supreme Court noted that Congress provided two exceptions to the “Rule of Two,” both of which allow the department to use non-competitive and sole-source contracts for contracts below specific dollar thresholds, but ruled that neither of them applied in this case.
It has also rejected the department’s argument that requiring it to apply the “Rule of Two” whenever it buys anything would “hamper mundane purchases like ‘griddles or food slicers.’”

That is the way to do it!!!!!!!!!!!!!!!!!!!!!!!!!!




Was the 100% a P & T award?


Have you applied for, or do you already receive SSDI benefits?

Was the hypothyroidism/hyogonadism due to a TBI?

I am familiar with some of these terms in relation to the pituatary glands.

I would think the hypothyroidism/hyogonadism , regardless of the service cause, would be a total and permanent disability.

“I have not seen any payment as of yet, the letter stated that I should see payment within 15 days, I am not sure if that will include retroactive pay. Since I am rated at 100% I will now attempt to have my student loans forgiven in full and I will apply for S-DVI insurance. Good luck to all my fellow disabled vets, I wish you all success in your claims as well as your future endeavors. “


When my deceased husband applied for a student loan waiver, I recall the VA declared him P & T on the form from the Higher Ed Department of NYS,so I guess I think that is what Student Loan waivers require but not sure.

The P & T designation comes with other benefits.

Your retroactive payment should have the date of the claim as the EED (Earliest Effective date)
regarding the claim you filed and appealed.

When you said you filed the claim on your own, is this the claim that the BVA awarded?

Was there another claim denied ,and unappealed, ????

I might be confused here on that. If the original denial was continuously prosecuted and the award comes from that ortiginal claimn, then the date of filing that claim should be the EED for the retro.

Check the bank account from time to time for the Retro money.

You did VERY WELL!!!!!

Not all claims need the type of research and perseverance you gave to your claim, but Most of them, these days, DO!

I hoe everyone out there who reads as a guest and our members carefully consider what you did here.

You left NO stone unturned!!!!

Dr. Bash was a good investment you made. He did 2 IMOs for me and I would stil be fighting the VA without them.
I hope you stay with us and become an active part of hadit because your story has already helped MANY and it is a testament to what it often takes to succeed:

“This took a lot of work, research, appointments, time and expenses on my part. I believe my success in my rating decision was from my research and hard work, I believe Br. Bash's opinion was extremely valuable, and I believe providing ample documentation from medical doctors (VA as well as independent) laid out in a organized fashion was crucial. “

That says it all. Congratulations and Welcome to hadit!!!!

Here is my story, Honorable discharged in 2006 after 5 years AD. In 2009 I placed a claim for a torn meniscus right knee and used a service organization/veterans representative to help me, my claim was denied. I then read all I could on the internet and forums and decided to file a appeal on my own using the knowledge I aquired. I then filed a claim on my own, against the advice of everyone (not including the internet forums), for hypothyroidism/hyogonadism, left knee torn meniscus, tinnitus, and hypertension. I scheduled multiple appointment with independent doctors as well as VA doctors so they could examine me and I compiled those medical records. I contacted Dr. Bash and had him review ALL my medical records to date and he interview me, he wrote a Independent Medical Expert Nexus Opinion. I contacted people whom I was stationed with and I knew well and had them write letters to support my claim, I had friends and family write letters of support. I then put together a entire packet with a outline and tabbed everything so they VARO could easily navigate it and review all the information from my records, opinions, and statements. In October of 2012 I received a letter from the BVA that they agreed my knee was service connected and awarded me 0%. Yesterday 3/23/2013 I received a package from the VARO that rated me as follows. Hypothyroidism/Hypogonadism 100%, Right knee 20%, Left knee 20%, Tinnitus 10%, Hypertension rated at 0%.

It did take a long time from the time I submitted my first claim but needless to say I am pleased with the final outcome. This took a lot of work, research, appointments, time and expenses on my part. I believe my success in my rating decision was from my research and hard work, I believe Br. Bash's opinion was extremely valuable, and I believe providing ample documentation from medical doctors (VA as well as independent) laid out in a organized fashion was crucial.

I have not seen any payment as of yet, the letter stated that I should see payment within 15 days, I am not sure if that will include retroactive pay. Since I am rated at 100% I will now attempt to have my student loans forgiven in full and I will apply for S-DVI insurance. Good luck to all my fellow disabled vets, I wish you all success in your claims as well as your future endeavors.

I also am thankful for what I receive, that doesn't negate the impact of my disabilities.  I believe the "glass half full" or positive attitude is not only helpful to ourselves, but to those who spend time around us as well.

WOW!  Are you negative or what?  YOU miss understood my entire story.  I HELPED A LOT of people get help and my Dad did too.  It all started with Steve helping me.  IT'S all about us helping one another.  Don't you get that?   If you don't, I will pray for you because life is too short to be that disgruntled

Hey fellow vets! So, I logged into eBennies early this AM & it has finally happened...Im now at 100% w/ SMC-s1 and not rly sure if its P&T or TDIU but honestly, it doesnt matter...100 is 100 & im just beyond happy for my wife and 3 kiddos more than anything...blessed! So, heres the breakdown:
OLD Comb Rtg--80% Primary SC Cndtns : 70%--TBI w/ residiuals; Secondary 30%--Maj Dep Disrdr
NEW Ratings & Conditions
Comb Rtg--100%
Prim: 70%--TBI w/residuals
Secondary:
50%--Migraine HA; 10%-Tinnitus; 100%--PTSD  w/Neurocognitive Disorder (NCD); SMC-1
Its still hard to believe this is happening for me & my family.  I want to thank all of you for the support, advice & encouragement. To those who are still fighting...KEEP AT IT and dont give up!
Semper Paratus
CoastieAirman96
 

Funny thing is my VSO likes to take all the credit for "My Years Of Work!" First of all no matter who they are they need to tell the vet,Hey buddy you are on your own, look up all the information sites and get everything you need to do for your claim, as I represent thousands of vets, but I will gladly put your paperwork in for you!

I think at that point the vets would not be as frustrated wondering why the guy/girl doesn't keep in contact!
The most important thing we can do, as others have stated, is to educate the vet with this process of claims admissions, appeals, etc.
This way the vet will understand why he/she doesn't get a return call, notification or correspondence from them.
I have utalized a AL vso at my VAMC more than my vfw vso EVER!
He is always there to help. You might have to wait a few hrs to talk to him, but he does try to help you.
It probably doesn't matter which one you use, as long as you do it all! Research and development is in your hands.

Also one might get lucky and befriend a VA supervisor, out of the blue who could lead you in the right direction too! Mine was Bart. I do miss not hashing things over with you, and your feedback was the best I ever received. You are truly a man of integrity, and honor. Had it not been for him, I would still be deceased according to the VA.
So in all walks of life only you can do the best for you is the ultimate tidbit to pass along. Educate yourself, and it sure doesn't hurt to pass on that personal knowledge and experience to others too. It might save them some heartache. No religion and no politics here, as neither will benefit my claim. Some things are personal, and need to stay personal.

Increases are somewhat more complicated.  There are special rules for increases.  I won an appeal on this:
(earlier effective date)
Department of Memorandum
Veterans Affairs
Date: September 23, 1998 VAOPGCPREC 12-98
From: Acting General Counsel (022)
Subj: Effective Date of Increased Rating Claim -- 38 C.F.R. § 3.400(o)(2) and (q)(1)(i)
To: Under Secretary for Benefits (20)
QUESTIONS PRESENTED:
a. What is the effective date for an award of increased disability compensation pursuant to 38 C.F.R. § 3.400(o)(2) where a veteran files a claim for increased rating alleging an increase in disability within one year prior to receipt by the Department of Veterans Affairs (VA) of the claim and a VA examination subsequently substantiates an increase in disability?
b. Is 38 C.F.R. § 3.400(q)(1)(i) applicable to a claim for an increased rating which is based upon new and material evidence received within the appeal period or prior to an appellate decision, and if so, what is the effective date for an award of increased compensation pursuant to section 3.400(q)(1)(i)?
COMMENTS:
1. Section 5110(a) of title 38, United States Code, provides that “nless specifically provided otherwise in this chapter, the effective date of . . . a claim for increase[] of compensation . . . shall be fixed in accor-
dance with the facts found, but shall not be earlier
than the date of receipt of application therefor.” Section 5110(b)(2) of title 38, United States Code, provides otherwise by stating that “[t]he 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.” Section 3.400(o)(1) and (2) of title 38, Code of Federal Regulations, implement sections 5110(a)
and (b)(2). Section 3.400(o) provides for effective dates
as follows:
Increases . . . (1) General. Except as provided in paragraph (o)(2) of this section . . . , date of receipt of claim or date entitlement arose, whichever is later.
(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.
In Harper v. Brown, 10 Vet. App. 125, 126-27 (1997), the Court of Veterans Appeals (CVA) held that “38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim (provided also that the claim is received within one year after the increase).” The CVA further stated that the phrase “otherwise, date of receipt of claim” provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id. As a result of the Harper decision, two questions regarding the applicable effective date for a claim for increased rating have arisen.
2. The first question concerns the appropriate effective date for an award of increased disability compensation pursuant to 38 C.F.R. § 3.400(o)(2) where a veteran files a claim for an increased rating alleging an increase in disability within the one year prior to VA’s receipt of the claim and a subsequent VA examination substantiates the increase in disability. According to paragraphs 6, 7, and 10 of your opinion request, when a veteran submits a claim for increased rating and a subsequent VA examination substantiates the increased disability, the Veterans Benefits Administration (VBA) awards increased compensation effective the date of the claim; however, paragraph 10 of your opinion request states that some members of the Board of Veterans’ Appeals (BVA) believe, based upon Harper, that the appropriate effective date in such a case is the date of receipt of the VA examination. The Supreme Court has instructed that, “[t]he starting point in interpreting a statute is its language.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). It is a basic principle of statutory construction that effect must be given, if possible, to every word and clause of a statute, so that no part will be inoperative or superfluous. 2A Norman J. Singer, Sutherland Statutory Construction § 46.06 (5th ed. 1992); United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); United States v. Menasche, 348 U.S. 528, 538-39 (1955). These canons of construction apply equally to interpretation of regulations. Black & Decker Corp. v. Commissioner of Internal Revenue, 986 F.2d 60, 65 (4th Cir. 1993). Section 5110(b)(2) states that “the [e]ffective 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 the claim is received within one year from such date. Similarly, section 3.400(o)(2) states that the effective date is the “[e]arliest date on which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.” Neither 38 U.S.C. § 5110(b)(2) nor 38 C.F.R. § 3.400(o)(2) refer to the date of the claim as the effective date of an award of increased disability compensation. Rather the plain language of the statutory provision and implementing regulation indicates that the effective date for increased disability compensation is the date on which the evidence establishes that a veteran’s disability increased, if the claim is received within one year from such date. The effective date of an increased rating would be the date of claim only if the claim is not received within the year following the increase in disability, as explained in Harper.
3. The legislative history of 38 U.S.C. § 5110(b)(2) supports this conclusion. The Veterans Disability Compensation and Survivor Benefits Act of 1975, Pub. L. No. 94-71, § 104(2), 89 Stat. 395, 396, added section 3010(b)(2) to title 38, United States Code (currently codified as amended at 38 U.S.C. § 5110(b)(2)). This provision was added in order to “permit retroactive payment of increased compensation from the date of increase in disability up to 1 year when that date is ascertainable.” Cong. Rec. H23,937 (daily ed. July 22, 1975) (statement of Rep. Roberts). The amendment was intended to achieve consistency with section 6(a) of Pub. L. No. 93-177, § 6(a), 87 Stat. 694, 696 (1973), which amended former section 3010(b) of title 38, United States Code (currently codified at 38 U.S.C. § 5110(b)(3)(A)), to provide that the effective date of an award of disability pension to a veteran is the date of application or the date on which the veteran became permanently and totally disabled, if an application is received within one year from such date, whichever is to the
advantage of the veteran. Section-by-Section Analysis Regarding House-Senate Compromise on H.R. 7767, 94th Cong., 1st Sess., 121 Cong. Rec. S13,598 (1974), reprinted in 1975 U.S.C.C.A.N. 771, 772. Section 6(a) of Pub. L. No. 93-177 afforded a totally disabled veteran one year from onset of disability to apply for pension and if eligible, receive payment of benefits retroactive to the date on which the veteran became permanently disabled. 119 Cong. Rec. 17,571 (1973). Pub. L. No. 93-177 was intended to provide uniformity with the effective date for disability compensation which was payable retroactively to the day following the veteran’s discharge if an application is received within one year from discharge and with death compensation, dependency and indemnity compensation, and death pension, which are also payable retroactively to the first day of the month in which a veteran died if the eligible survivor’s application is received within one year. H.R. Rep. No. 398, 93d Cong., 1st Sess. (1973), reprinted in 1973 U.S.C.C.A.N. 2759, 2771-72 (letter from Mr. Donald E. Johnson, VA Administrator, dated May 10, 1973). This legislative history indicates that by adding current section 5110(b)(2) to title 38, United States Code, Congress intended to provide additional disability compensation up to one year retroactive to the date on which the event establishing entitlement to additional benefits occurred, i.e., the date on which the increase in disability occurred.
4. The regulatory history of 38 C.F.R. § 3.400(o)(2) is in accord with the legislative history of Pub. L. No. 94-71. In 1975, the Veterans Administration (now Department of Veterans Affairs (VA)) issued 38 C.F.R. § 3.400(o)(2) to implement section 5110(b)(2). According to Transmittal Sheet 584 (8-1-75), section 3.400(o)(2) was added to title 38, Code of Federal Regulations, to “permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred.” Section 3.400(o)(2) was “intended
to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty.” Transmittal Sheet 584 also stated that 38 C.F.R. § 3.400(o)(2) was “not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time and there is no evidence of entitlement to increased evaluation prior to date of claim.” We believe that this regulatory history indicates that the effective date of an increased rating pursuant to 38 C.F.R. § 3.400(o)(2) is when the evidence establishes that the increase in disability occurred, not the date of the claim.
5. We therefore conclude that, when a veteran submits a claim alleging an increase in disability within the one year prior to VA’s receipt of the claim and medical evidence substantiates the increased disability, the effective date of an award of increased disability compensation must be determined based upon the facts of the particular case. Obviously, this factfinding will be easier where sound medical evidence, particularly expert medical opinion, exists which is probative of when the disability worsened. However, the record as a whole, including testimonial evidence, must be analyzed for this purpose.
6. The next question which arises involves the application of section 3.400(q)(1)(i) of title 38, Code of Federal Regulations, which states that, when new and material evidence, other than service department records, is received within the appeal period or prior to an appellate decision, the “effective date will be as though the former decision had not been rendered.” Based upon its interpretation of the Harper decision, VBA issued USB Letter 20-98-5, which advises that “38 C.F.R. § 3.400(q)(1)(i) has no bearing on the issue of the proper effective date of a grant of increased disability” and that claims for increased rating are “governed solely by 38 C.F.R. § 3.400(o)(1) and (2) regardless of when the supporting evidence is received.” Prior to issuance of USB Letter 20-98-5, VBA’s policy with regard to section 3.400(q)(1)(i) was set forth in paragraph 6.a. of Training Letter (Trg Ltr) 91-3 (July 2, 1991), which states that 38 C.F.R. § 3.400(q) “defines or clarifies” the date of a reopened claim. As explained in Examples 1 and 2 in the Training Letter, when a veteran files a claim for increased rating which is denied by VA, provides new evidence within the one-year appeal period, and has a VA examination which establishes an increase in disability subsequent to denial of the claim, the effective date for the increased rating is the date of the original claim. (In Example 1, the VA exam occurred within the one-year appeal period, while in Example 2, the VA exam occurred after expiration of the one-year period.) The question which arises is whether USB Letter 20-98-5 is a correct interpretation of Harper.
7. We first consider whether 38 C.F.R. § 3.400(q)(1)(i) is applicable to a claim for increased rating based upon new and material evidence submitted prior to final disallowance of a claim. The USB Letter cites Harper for the principle that claims for increased rating are not governed by section 3.400(q)(1)(i). However, the CVA did not address the question of the appropriate effective date where following denial of a claim for increased rating but within the appeal period, evidence is received by VA which establishes that an increase in disability now exists, i.e., the facts presented in the Examples in the Training Letter. 1 The Harper decision, therefore, provides no support for the conclusion that 38 C.F.R. § 3.400(q)(1)(i) is not applicable to a claim for increased rating based upon new and
material evidence submitted prior to final disallowance
of a claim. In addition, we are unaware of any CVA
decision which addresses the applicability of 38 C.F.R. § 3.400(q)(1)(i) to such a claim. We therefore turn to the regulatory history of section 3.400(q)(1)(i) for guidance in determining the applicability of the regulation.
8. Section 3.400(q)(1)(i) originated as Vet. Reg. No. 2(d), Instruction No. 3, dated October 18, 1935, which
provided instructions for adjudicating claims for compensation or pension based upon new and material evidence presented after prior disallowance. Paragraph 3 of Instruction No. 3 pointed out that decisions of adjudicating agencies of original jurisdiction do not become final until the expiration of the time period within which the appeal may be filed and stated that, “[a]ccordingly, evidence received prior to the expiration of the appeal period shall be considered by the adjudicating agency of original jurisdic-tion . . . and an appropriate determination made.” Instruction No. 3 became Regulation and Procedural Rule (R&PR)-1201, issued on January 25, 1936, Veterans Administration Regulation (VAR) 1201, and was subsequently codified at 38 C.F.R. § 3.400(q)(1)(i). We find no indication in this regulatory history that 38 C.F.R. § 3.400(q)(1)(i) does not apply to a claim for increased rating based upon new and material evidence submitted prior to expiration of the appeal period or before an appellate decision is issued.
9. We believe that a conclusion that 38 C.F.R. § 3.400(q)(1)(i) does not apply to claims for in-
creased rating based upon new and material evidence received within the appeal period or prior to an appellate decision would conflict with 38 C.F.R. § 3.104(a), which governs finality of decisions. Section 3.104(a) states that a decision of a rating agency or other agency of original jurisdiction “shall be final and binding on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104.” Thus, if a rating agency or other agency of original jurisdiction issues a decision denying a claim for increased rating, new and material evidence would be required to reopen such a decision within the one-year appeal period, and section 3.400(q)(1)(i) would govern the determination of the effective date for the increased rating.
10. We next consider the appropriate effective date pursuant to 38 C.F.R. § 3.400(q)(1)(i) for a claim for increased rating based upon new and material evidence submitted within the appeal period or before an appellate decision is issued. According to the regulatory history of section § 3.400(q)(1)(i), the effective date for a successful claim based upon new and material evidence under R&PR-1201
was governed by R&PR-1212(B) (Jan. 25, 1936), which stated:
Where, upon reconsideration by a rating agency
of original jurisdiction in accordance with
R. & P. R-1201, a favorable decision is rendered, the effective date of an award for monetary benefits will be the date of receipt by the Veterans’ Administration of the application for reconsideration, or the date the evidence establishes entitlement, whichever is the later.
However, an All Station Letter from Mr. O.W. Clark, VA Assistant Director, dated April 16, 1936, quoting excerpts from a letter signed by the VA Administrator, indicated that RP&R-1212(B) did not apply to a claim based upon new and material evidence submitted prior to expiration of the appeal period or until a decision was issued by the Board of Veterans’ Appeals. 2 The All Station Letter stated that the effective date of an award based upon new and material evidence submitted prior to the date on which a rating decision becomes final is the date of receipt of the original claim or the date the evidence shows entitlement, whichever is the later date.
11. On May 29, 1959, according to Transmittal Sheet (TS) 189 (5-29-59), VA restated its regulations for purposes of simplicity, and VAR 1201 and 1212(B) were codified at 38 C.F.R. § 3.400(q)(1). New section 3.400(q)(1) stated that, when new and material evidence other than service department records is received within the appeal period or prior to an appellate decision, the effective date “will be as though the original decision had not been rendered,” but when such evidence is received after the expiration of the appeal period, the effective date is the date of receipt of the evidence which constitutes a new claim or the date entitlement arose, whichever is later. 3 TS 195 (May 29, 1955). There is no indication in TS 189 of a change in the policy enunciated by the VA Administrator in 1936 regarding the effective date of a successful claim based upon new and material evidence submitted prior to final disallowance of the claim by VA.
12. We also believe that the plain language of 38 C.F.R. § 3.400(q)(1)(i) supports the conclusion that the effective date for an increased rating based upon new and material evidence submitted during the appeal period or prior to an appellate decision is the date of claim or the date on which the evidence shows entitlement, whichever is later. Section 3.400(q)(1)(i) states that, when new and material evidence is received within the appeal period or prior to an appellate decision, the effective date “will be as though the former decision had not been rendered.” As a result, the former decision regarding the claim for increased rating is a nullity, and the claim must be regarded as an original claim. The statutory provision and regulations governing the effective date of an original claim for increased rating, 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400, must be applied.
13. According to 38 U.S.C. § 5110(a), “nless specifically provided otherwise in this chapter,” the effective date of a claim for increase “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” See also 38 C.F.R. § 3.400. Thus, the effective date of an increased rating based upon new and material evidence received within the appeal period or prior to an appellate decision is the date on which the facts establish the increase occurred or the date of the original claim for increase, whichever is later. As noted earlier, this factual determination will be more evident where sound medical evidence exists which is probative of when the disability increased. But in any event, the record as a whole, including testimonial evidence, must be considered for this purpose.
14. We next address the hypothetical situation presented in paragraph 5 of the USB Letter where, following denial of a claim for increased rating, it is factually ascertainable based upon new and material evidence submitted within the appeal period that a veteran’s disability increased within one year prior to receipt of the original claim. We believe that the effective date must be “as though the
former decision had not been rendered.” See 38 C.F.R. § 3.400(q)(1)(i). Section 5110(a), which applies to original claims, including claims for increase, states that “nless specifically provided otherwise in this chapter,” and as discussed above, 38 U.S.C. § 5110(b)(2) specifically states that the effective date of an award for increased compensation is the date on which it is factually ascertainable that an increase occurred, if the claim is received within one year from such date. Thus, while we agree that the effective date in the hypothetical presented in paragraph 5 of USB Letter 20-98-5 would be the date on which the increase in disability occurred, the regulation which must be applied to such a claim is 38 C.F.R. § 3.400(q)(1)(i).
15. Finally, we note that paragraph 2 of the USB Letter erroneously states that “ubsequent case law has established that new and material evidence refers only to that evidence which is necessary to reconsider (reopen) a previously denied claim for service connection.” (Emphasis in original). Paragraph 4 of the USB Letter also states that “38 C.F.R. § 3.400(q)(1)(i) . . . applies only to evidence submitted within the appeal period where the issue is entitlement to service connection.” In fact, the CVA has indicated that new and material evidence may be used to reopen a claim which has previously been denied on bases other than service connection. Heebner v. Principi, 3 Vet. App. 423 (1992) (denial of extension of eligibility for GI Bill education benefits); Camphor v. Brown, 5 Vet. App. 514 (1993) (status as veteran’s surviving spouse); Romero v. Brown, 6 Vet. App. 410 (1994) (prisoner of war status); Villaruz v. Brown, 7 Vet. App. 561 (1995) (forfeiture based upon providing assistance to enemy); Mata v. Brown, 8 Vet. App. 485 (1996) (whether decree of adoption for purported adopted children conformed with Philippine law); Daniels v. Brown, 9 Vet. App. 348 (1996) (willful misconduct). The CVA has stated that evidence is “material” if it is “relevant to and probative of the issue at hand,” Sklar v. Brown, 5 Vet. App. 140, 145 (1993), but we do not believe that the CVA has stated that the only issue to which material evidence may be probative is service connection.
16. To the extent that the policies regarding the applicable effective date for a claim for increased rating, including those set forth in your opinion request, Trg Ltr 91-3, and USB Letter 29-98-5, are inconsistent with 38 U.S.C. § 5110(a) and (b)(2) and 38 C.F.R. § 3.400(o)(2) and (q)(1)(i), as explained above, and may be applied in a manner unfavorable to claimants, they are without effect. See VAOPGCPREC 12-96; VAOPGCPREC 13-97; Cohen v. Brown, 10 Vet. App. 128, 139 (1997).
 
HELD:
a. Pursuant to 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), where a veteran files a claim for increased rating alleging an increase in disability within one year prior to receipt by VA of the claim and a VA examination or other medical evidence subsequently substantiates an increase in disability, the effective date of the award of increased disability compensation is the date as of which it is ascertainable based on all of the evidence of record that the increase occurred.
b.(1) Section 3.400(q)(1)(i) of title 38, Code of Federal Regulations, is applicable to a claim for increased rating based upon new and material evidence submitted prior to expiration of the appeal period or before an appellate decision is issued.
b.(2) When new and material evidence is submitted within the appeal period or prior to an appellate decision with regard to a claim for increased rating, the effective date for any increased rating is the date on which the facts establish the increase in disability occurred or the date of the original claim for increase, whichever is later. However, if the facts establish that a veteran’s disability increased within one year prior to receipt by VA of the original claim for increased rating, the effective date of the increase is the date on which the increase in disability occurred.
 
 
 
 
John H. Thompson
 
 
 
 
1 We note that paragraph 4 of the USB Letter states that in Harper, “[f]ollowing a VA examination, the claim was denied.” There is no indication in the CVA’s Harper decision that the veteran had a VA examination or that VA denied his claim for an increased rating. However, according to your opinion request regarding 38 C.F.R. § 3.400(o)(2), following receipt of the veteran’s claim for increased rating, a VA examination was scheduled, the examination report showed no evidence of increased disability, and the claim was denied.
2 This conclusion that R&PR-1212(B) did not apply to claims based upon new and material evidence submitted prior to final disallowance of the claim by VA is further supported by R&PR-1201(D) (Sept. 26, 1947), which stated that the effective date for claims covered under subparagraphs (A), (B) and (C), i.e., claims based upon new and material evidence submitted after a final disallowance of the claim, is the date of receipt of the application for reconsideration or date of receipt of the evidence which establishes entitlement, whichever is later. Also, paragraph 3.d.(1) of VA Technical Bulletin (TB) 8-233 (March 19, 1953), entitled “Effective Dates of Awards in Philippine Death Cases Involving VA Reconsideration Or Recertification By The Service Department As To Active Duty Status,” pointed out that awards based upon new and material evidence other than from the service department received prior to final disallowance of a claim “are subject to the limitations as to effective dates applicable to the claim that had not been finally disallowed.” Paragraph 3.d.(2) of TB 8-233 stated that claims based upon new and material evidence received by VA subsequent to final disallowance of a prior claim were governed by VAR 1212(B) and that under such circumstances, benefits may not be awarded prior to the date of application for reconsideration.
 
3 The word “original” was changed to “former” in 1962. TS 270 (Dec. 1, 1962).

Thats basically what I said, either from the date of the claim filed, unless the applicant is within a one year period of appealof an existing claim. If its part of an appeal filed in a timely manner then the effective date goes back to the original date of claim. 

The crazy one here, KaylaC, I am trying to form this in the best way I can. The bottom line to VA disability is to be compensated for a service connected disability. In all cases a veteran should already have a current diagnosis before ever filing a claim. 1. The veteran has a condition that he/she is being treated for and is given a diagnosis. 2. This condition began while the veteran was in service. The treatment records proves the veteran was/is seeking treatment for a condition that according to his/her SMRs and post service medical records confirm the link of the two condition and the veteran is given a diagnosis of the relationship.  3. A treating doctor will be more experienced with the veteran and his/her medical records and condition compared to a C & P examiner who only has the veterans C-File a limited time and only see the veteran once for a few minutes. 4. A veteran should never ever go to a C & P Exam without a clear diagnosis because the C & P Examiner may not be veteran friendly (Thinks the veteran is trying to get over/ free money), has a bad day, (went to the store and someone keyed his/her car), has personal problems ( just broke up/going through a divorce) although there is a section in the regulation that basically say that all VA employees must be professional when dealing with a veteran, we all know this is not true.  By having a diagnosis proves the veteran was seeking medical help for a condition that has become a disability and warrants a grant for compensation. If a veteran files a claim without a clear diagnosis he/she may be adding years onto his/her claim by getting a bad C & P Exam.  We have seen a lot of veterans being denied claims because VA stated that there were no medical records/evidence in the veterans SMRs that proves the veteran had the condition in service where the veteran actually did have the condition in service but VA either did not review the veterans file, the examiner did not have the veterans file or even that the veteran had the condition in service but VA both the C & P Examiner and the Rating Specialist said the condition in service was acute and not chronic. So the best advice you can give a veteran is to seek treatment then seek compensation. I hope this helps your understanding of VA mind set and yes VA has regulations but those regulations are open to the public and we use them just like VA.  

I do have a copy of my SMR with a DX of mild OSA.
The C-File is actually in Wisconsin and I am not sure why. I plan on calling the VARO office in Roanoke to see if I can find a MFIC that will be able to put me in touch with a VSO rep to talk to.
Thank brother,
JR

I was thinking about the acronyms on that level, but after your reply I am ROTFLMBO....

I was thinking about the acronyms on that level, but after your reply I am ROTFLMBO....

I was thinking about the acronyms on that level, but after your reply I am ROTFLMBO....

MF In Charge.
Do you have a copy of your SMR with the DX of mild SA? If not, requesting your Complete SMR on your E-Ben site will be about 9 months faster than the usual wait of 13+ for your C-File.
As to your "Viewing" your C-File, 5 hr ride to RO is not worth the trip, if your not absolutely certain of the outcome. Whys your C-File in Ohio?
This will take some work on your part. Find out which VSO is the best staffed at your RO. You need a VSO that you can reach by Phone, Fax or E-Mail on a regular basis. How far are you from your VMC? There should be at least 4+-, VSO-Reps there. They won't have the same computer access that their RO HQ Offices have but they can help. There might even be a State VSO Office near you, Google it.
I just spoke with my VSO HQ regarding viewing my C-File at the RO. He's a Retired DRO and very well seasoned. He concurred regarding the VA Walk-in, 1st come 1st served C-File viewing policy. He stated that all Det RO Files have been digitized, everything is now on computer. All the better, for our viewing pleasure.
I have no info to support this but I have to believe that your C-File is also digitized. If that's the case, you should be able to view it on an RO Comp Dept Computer. You need to check that out with a VSO MFIC.
Or, you can wait a week or so, I have an upcoming appointment at my RO. While I'm there, I was planning on trying the C-File Viewing policy out.
Semper Fi

MFIC is the M...F...in charge, and their boss would be the Head MFIC.  This is not to be confused with JAFO...just another F...observer.  Though when the whole thing is AFU, sometimes the MFIC acts like a JAFO, and when that happens it's FUBAR.  Which gets you thinking...BOHICA.  Then you begin to realize it's SNAFU!

Thanks again! Do you know if a FOIA is required for my C-File?