Effective Dates

[free_spirit_etc]

" (2) The 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."

So - is this talking about an increased RATING for something that was already granted SC --or increased compensation - in general.

In my husband's case - If he was 20% Service Connected on his back and knee - but recieves an increased COMPENSATION based on his cancer -- can the claim go back to the date it can be shown the increase in disability occured - if he filed within one year of that date?

With all the talk of Congress being specific where Congress intended to be specific --

Is an increase in disability only increased ratings in disabilities already SC'd? Or does an increase in disability also include percentage of disability increasing due to an additional Service Connected condition?

Free

Free

[betrayed]

" (2) The 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."

yah, what does it mean..............

[Berta]

Free -the effective date for an initial award is either the date of application asking VA to SC the disability or in some cases- by documented medical evidence- possibly a year earlier than that-

Most EEDs are the date of the claim.

The regulation you mention is for applications for increase.

I would think that the EED for your husband's cancer is the date he filed the initial claim.

If he had ever filed a prior claim for it and was denied- and it is an AO cancer under Nehmer-other regs kick in.

Example: Say the vet has had 20% for SC of her DMII from AO for 3 years.(Vietnam veteran)

She feels she should be within a higher rating criteria per the VA's rating schedule as her DMII has increased in its disabling affect.

She applies for increased disability on March 1, 2007.

Her medical evidence supports the claim.

The VA awards back to her EED ,March 1, 2007.

Or she could ask for service connection of disabling complications of her DMII (I would raise both issues in this type of claim)

SHe has developed cataracts that are more than likely due to her SC DMII.

She files a claim for secondary service connection on March 1, 2007.

Her EED is March 1, 2007.

There are many situations (as described within Chapter 8 of the VBM-an entire chapter devoted to how veterans can challenge an EED.

Also new veterans who file claims within their first yeat after service receive an EED back to the day after their separation from the military.

The Nehmer COurt Order threw EEDs for many many AO Vietnam vets right out of the ballpark.

Say the veteran above had filed for SC for DMII prior to DMII being added to the regs in May 2001.

She had a denial and a rating of DMII as NSC at 20% in a decision regarding a claim she had filed in Jan 1999.

Her EED is January 1999.

Full Retroactive benefits are payable to estates and survivors also in many cases under Nehmer that

in claims not involved with Nehmer the survivors can not get.

In one case per NVLSP-(page 631) the surviving spouse received full retroactive compensation that was due the veteran in his lifetime-from 1988 to May 1995.

This is not an accrued benefit-

38 CFR 3.816(f) (2006)

That is almost the very same scenario I am in- as my husband first manifested DMII from AO in VA med recs in 1988.

Edited June 26, 2007 by Berta

[theotherguy]

3.400(o)(2) applies only to disabilities which are already service-connected. New disabilities are rated as Berta described and Nehmer and liberalizing legislation are two things to consider with the effective date assigned for any presumptive disability associated with herbicide exposure.

[Vike17]

Free,

Basically what this means is if a veteran puts in a claim for an increase within ayear of the disability actually increasing in severity, then the effective date may go back to the date of when the actually increase in disability happened. In order for this to happen, the medical records must clearly show that the disability actually increased to a certain amount. For example, let's say you apply for an increase on May 1, 2007 for a lower back condition that is currently rated at 10% due to forward flexion at 70 degrees. Then the VA grants the increase effective May 1, 2007, but the actually worsening of the lower back started on November 1, 2006, with decreased forward flexion of less that 60 degrees or incapacitating episodes between 2-4 weeks within the past 12 months, which was documented by medical records. The VA can assign an effective date of November 1, 2006 instead of May 1, 2007, because the medical evidence actually show an increase in disability that happened within one year of you filing the claim for an increase. The senario happens many times with claims for IU.

The only thing to keep in mind that the medical evidence must actually show a woresening of the condition, not just simply the veteran stating that on such and such a date their condition seemed to get worse.

Vike 17

Edited June 27, 2007 by Vike17

[Ricky]

Vike - I am a little confused. Lets say a vet has SC for a back issue rated at 10 percent (forward flexion problem). On Jan 15 2004 he/she tries to tie their shoe but can not bend over that far without extereme pain so they petition the VA for a higher rating due to their current inability to tie their shoe. Request for increase is received by the RO on 30 Jan 2004. With the backlog the RO finally gets to the claim in June 2005 (18 months later). A C&P is scheduled and happens in Sep 2005. At the C&P the doc determines that flexion is limited to a percentage that qualifies the veteran for a 40 percent rating.

The RO issues the rating decision in Dec 2005. What will/should the effective date be? The date the VA received the request for increase with the vets statement describing/claiming the increase - the date of the C&P exam or the date of the rating decision?

Thanks

Ricky

[carlie]

I believe in this example the effective date for increased compensation would be

30 Jan 2004 - the date VA received the request for increase.

jmho,

carlie