tdiu A Question On My Eed........am I Imagining Things

[LarryJ]

Timeline:

08/25/06

"This is an informal claim for bi-polar disorder or major depression steming from my left ankle service-connected arthritis, pain, unemployablity, left knee and right hip pain and arthritis."

04/10/07

Granted service-connection for depression @ 70%.

08/18/08

Granted TDIU, retro to 04/10/07, the date of grant of service connection for depression. Paid retro back to 04/10/07.

My question(s):

Shouldn't the retro pay for TDIU be back to 08/25/06, the date that I FILED for Major Depression, and not the date that I was GRANTED service-connection for MDD?

And, shouldn't my TDIU be dated the same.......meaning the Chap 35 benefits should be "back-dated" to 08/25/06?

[sharon]

§ 3.155 Informal claims.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(B) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

© When a claim has been filed which meets the requirements of §3.151 or §3.152, an informal request for increase or reopening will be accepted as a claim.

You should be able to go see Wille now :D :D :D :D :D

[john999]

Larry

I think you have a claim for an EED. The VA does this all the time often using the date of a C&P exam to establish the ED. You claimed IU and depression in 8/06 and that is what your effective date should be as I see it. Did the VA have some new evidence they based the later effective date on? You know most vets are just so happy to get IU after starving for a couple of years they take what they can get no questions asked. I think the same thing happened to me. I had a claim on appeal for about 5 years. I added some new evidence and that is the date the VA used for my 70%. I got a CUE going back to the very beginning so I am waiting on that.

[Berta]

Larry -I agree that if the medical evidence in VA's possession showed you were TDIU P & T back to 2006- the retro should have gone back that far-

They make plenty of retro errors-

When they finally paid me some DOC they were illegally withholding- the audit looked pretty accurate- year by year- until I added it all up-

they had forgotten to pay me a whole year of DIC.

I could have easily just overlooked this and never checked their math.

I helped a local vet and had a fit when they gave him his C & P date for the retro-

we fought that right away-

they ultimately paid him about 8 or 9 years retro-

He was so tired of fighting them he almost didnt want to even pursue the proper EED.

[pacmanx1]

I agree with John and Berta, it seem that a lot of us is in the same situation. Remember your time line if you have not filed for a NOD for EED your year is almost up. So file it and let us know what happens. Larry, I think you are right

Edited August 11, 2009 by pacmanx1

[tssnave]

Based on advice I got on hadit, when I filed my second appeal (the first one was after they denied sc by ignoring evidence in my SMR and letters from the shrinks who treated me on active duty) I requested the EED of my original claim and they awarded it on the second appeal for a higher rating.

If your claim has been open the whole time, you can quote the following reg in your NOD request for EED: 38 CFR § 3.156(B) (2006)

§ 3.156 New and material evidence.

(a) General. -- A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(:D Pending claim. -- New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(:D(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

Hope this helps,

TS Snave

[JustPLS]

I'm still new at this, but from all I've read, it sure seems you would have a great EED case. I would go for it.

Pat