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

[Berta]

They tried to give one of my vets the date of C & P exam for his diabetes-

he was shocked- I said maybe we should file a Section 1151 claim too- since the VA states that you incurred diabetes as the result of a C & P exam! )

But they did the right thing after we practically had to knock them over the head with the evidence-

His EED is now 12 years before the C & P exam.He succeeded in his claim.

What I meant Jim- if I am getting your question right- is this-

The VA gave my husband (claim for higher % on his PTSD filed in 1992)

an EED back to 1991 as medical evidence of record- in his SSA records- revealed his EED for 100% PTSD was back to 1991.

The award letter came in 1997. He had been dead for years already-yet the medical evidence clearly revealed that his actual EED was one year prior to when he filed the actual claim.

This facet of EEDs is expained in VA case law and I think I posted the reg here- will look for it-

actually I think I used the M21-1 version of what I mean-

[betrayed]

revealed that his actual EED was one year prior to when he filed the actual claim.

my current fight is now with EED's, I guess I will have to buy the lexis nexus, I understand there is a chapter that is devoted to fighting EED's?

[free_spirit_etc]

Thanks to everyone for clarifying the issue for me. Understanding sure helps.

On this post - I think this was a reason my husband was denied service connection on a couple of his claimed conditions. He claimed them AT RETIREMENT -they wait over a year to give him a C&P - they FIND current disabilities - but then even state BECAUSE of the length of time involved they cannot specifically link the current disabilities to those he claimed on discharge.

But don't you think it is kind of odd that the conditions he claimed AT retirement were found to be disabling.

I thought this might be a reason they delay the C&P exams. Had they done them a month after retirement - it would be harder to disconnect the current disability from the one claimed at discharge.

Free

I have not seen it on initial claims for SC, only on request for an increase. I recently read on in which the veteran asked for an increase from 0 percent on his back to 20 percent. This was Jan 05. He was given a C&P in July 05 from which they approved an increase to 10 percent in an January 06 rating decision. Problem is they made the effective date January 06 the same date the rating decision was issued.

I understand that crap happens sometimes as many claims are processed by the VA. However, when it is the same type of crap happening time and time again one has to begin to wonder. You know, those things in life that make you go hmmmmmmmmmmm. We have always be able to get them striaght but each incident has required a look by the BVA as the response to the NOD and DRO review was even more stupid than the original rating decision. It is the Montgomery RO.

[free_spirit_etc]

Thanks to everyone for clarifying the issue for me. Understanding sure helps.

On this post - I think this was a reason my husband was denied service connection on a couple of his claimed conditions. He claimed them AT RETIREMENT -they wait over a year to give him a C&P - they FIND current disabilities - but then even state BECAUSE of the length of time involved they cannot specifically link the current disabilities to those he claimed on discharge.

But don't you think it is kind of odd that the conditions he claimed AT retirement were found to be disabling.

I thought this might be a reason they delay the C&P exams. Had they done them a month after retirement - it would be harder to disconnect the current disability from the one claimed at discharge.

Free

I have not seen it on initial claims for SC, only on request for an increase. I recently read on in which the veteran asked for an increase from 0 percent on his back to 20 percent. This was Jan 05. He was given a C&P in July 05 from which they approved an increase to 10 percent in an January 06 rating decision. Problem is they made the effective date January 06 the same date the rating decision was issued.

I understand that crap happens sometimes as many claims are processed by the VA. However, when it is the same type of crap happening time and time again one has to begin to wonder. You know, those things in life that make you go hmmmmmmmmmmm. We have always be able to get them striaght but each incident has required a look by the BVA as the response to the NOD and DRO review was even more stupid than the original rating decision. It is the Montgomery RO.

[theotherguy]

Berta,

The regulation in question here (38 CFR 3.400(o)(2)) is not the only regulation which is possibly applicable in claims for increase. I have reviewed many cases in which 38 CFR 3.157((1) has not been properly applied; especially with diabetics. These effective dates can go well beyond the one year period allowed for by 3.400.

Here is the reg (§ 3.157 Report of examination or hospitalization as claim for increase or to reopen) for anyone who is curious and remember the title to avoid confusion about broader applicability to original compensation claims:

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.