Nod Question

[gp747]

ok turned out i think i was ok to file a nod on my eed. so i filed a nod and sent in a form 9 also last night.

i am trying to go back to 1987 when i put in for the same thing and was denied. ok i know what they are going to try to say,case was decided and the one year passed in 1987 and that made it final.

however here is where i got them i think. when filed the claim i have won at 30% to begin,it went to bva and they determined that me not filing within the one year was harmless error. i have it in writing in one of my appeals.

so having that out of the way if they accept my reasoning should clear the way for my eed to go back to 1987. right or wrong???

[broncovet]

Skunk

Lexis Nexus website offers this advice to Veteran advocates looking for an EED: (This was in my personal notes, and, even tho none of the below is my opinion, I cant find the link to this but am offering it anyway)

5.9 EFFECTIVE DATE FOR RATING INCREASES

5

.9.1

Staged Ratings

Once

the VA grants a claim for an increased rating, it must determine the

date from which payment of the increased rating should begin. The

date that governs when the change in benefit should be paid is known

as the effective date of the claim. The general rule governing

effective dates for claims for rating increases is that benefits are

effective from the date that the VA received the claim or the date

that entitlement arose (which means the date the disability increased

in severity), whichever is later. 512 However, under certain

circumstances, a veteran may be awarded an effective date which is

earlier than this general rule.

The

effective date for an award of a rating increase may date back one

year prior to the date of a claim for an increase if "it is

ascertainable that an increase in disability had occurred"

within this time frame. 513 The CAVC has stated that, in order to

receive an earlier effective date, the veteran must submit evidence

that indicates that there has been more than a marginal increase in

disability. The veteran must show that the disability has increased

to the next disability level within the year preceding the date of

the claim. 514 In determining whether a disability has undergone an

increase within the year preceding the date of the claim, the VA must

consider all of the evidence of record. 515

Footnotes

512.

38 U.S.C.S. 5110(a); 38 C.F.R. 3.400(o)(1) (2007).

513.

38 U.S.C.S. 5110(:)(2); 38 C.F.R. 3.400(o)(1)(2) (2007); see Hazan v.

Gober, 10 Vet. App. 511, 520 (1997).

514.

Hazan, 10 Vet. App. at 519.

515.

Hazan, 10 Vet. App. at 518 ("section 5110((2) requires review

of all the evidence of record (not just evidence not previously

considered) as to the disability in order [to] . . . [determine] the

'earliest effective date' "); see also Scott v. Brown, 7 Vet.

App. 184, 189 (1994); Servello v. Derwinski, 3 Vet. App. 196, 200

(1992).

5.9.1

Staged Ratings

Because

there may be a significant time delay between the date on which a

veteran files a claim for an increased rating and the date on which

the VA adjudication and appeals process is concluded, an issue arises

as to what effective date should be assigned when the disability

worsens between the date on which the veteran files his or her claim

for an increased rating and the date on which the VA adjudication and

appeals process is concluded. For example, on January 1, 1998, a

veteran files a claim for an increased rating for a service-connected

back disability that is currently rated at 10 percent. At the time

that the veteran files his claim, he submits evidence that indicates

that he should be rated at 20 percent disabled. The RO denies the

veteran's claim for an increase and he timely appeals this decision

to the Board. However, on March 3, 1999", while his case is

pending on appeal to the Board, the veteran's back condition worsens

and new medical evidence indicates that the veteran's disability

should be rated as 60 percent disabling. The Board agrees with the

veteran that his disability has worsened and that the veteran is

currently entitled to a 60 percent evaluation for his back condition.

However, the Board must decide what effective date should be assigned

to the 60 percent rating.

In

Fenderson v. West, 516 the CAVC was faced with a similar issue. In

Fenderson, the veteran was appealing the VA's initial rating of a

service-connected headache disability. As in our example, the

evidence in Fenderson indicated that the veteran's condition had

changed between the date on which the veteran first filed his claim

for an initial rating and the date on which the Board issued its

final decision of the veteran's appeal of the initial rating assigned

by the RO.

The

Court recognized that separate ratings may be assigned for separate

periods of time based on the facts involved in the particular case.

517 This practice of assigning separate ratings for distinct periods

of time is known as "staged ratings." 518

Although

Fenderson involved an appeal of an initial rating, the principles

articulated in that case apply equally to claims involving rating

increases. As in claims for initial ratings, the VA is charged with

the duty of assigning the effective date for rating increase claims

based on the "facts found." 519 Therefore, when the

evidence before the agency in a rating increase claim indicates that

the veteran may be entitled to separate ratings for separate periods

of time because of a change in the nature of the disability, the VA

should assign staged ratings for the various time periods involved.

In our example, the Board would be able to assign a 20 percent

evaluation for the time period from January 1998 until March 1999,

and a rating of 60 percent beginning March 1999.

**

Advocacy Tip ** In cases that have been pending for several years,

advocates are advised to submit, if possible, medical statements that

support the highest possible evaluation from the earliest possible

date. In some instances, advocates may want to submit a retrospective

medical opinion that provides an analysis of the severity of the

service-connected condition from the date the condition should have

been service-connected. In some cases, it may be more advantageous

for advocates to use the strategy of submitting evidence establishing

a higher evaluation after the VA has established a retroactive

effective date.

Footnotes

516.

12 Vet. App. 119 (1999).

517.

Id. at 126; see also Meeks v. West, 216 F.3d 1363 (Fed. Cir. 2000)

(Federal Circuit affirms the CAVC determination that VA properly

awarded veteran a staged rating from the date of his military

discharge pursuant to 38 U.S.C.S. 5110(a), which provides that the

effective date of an award of disability compensation "shall be

fixed in accordance with the facts found").

518.

Fenderson, 12 Vet. App. at 126.

519.

38 U.S.C.S. 5110(a) states that "nless specifically provided

otherwise in this chapter, the effective date of an award based on an

original claim, a reopened claim after final adjudication, or a claim

for an increase, of compensation . . . shall be fixed in accordance

with the facts found. . . . ."

[broncovet]

Skunk

I am also appealing for an EED, and am also continuing to do research on it. Frankly, I think you are right that once the BVA said that passing the year was "harmless error", they cant go back and then say somehow it is not at a later date.

However, I encourage you to "hit them with the whole enchilada" by carefully reviewing your old decisions (reread them all carefully, and try to apply case law to your case) as well as medical exams, to see if you cant nail em with a legal technicality, like they always do to us. That is, if you elect NOT to get a lawyer to do that for you, and plan on appealing your eed on your own. Remember the VA has the regulations to use against us..but we have the same weapon to use against them..the problem is their lawyers have legal knowledge we dont have. However, we have something they dont have...we have time, because we only have to work on our case and they have to work on lots of cases at once. We also have motivation on our side, because this affects OUR paychecks and our future, while the lawyers pretty much make the same amount whether they win or loose.

[gp747]

ok i have a little more explaining to do,here is how i wound up being able to appeal after the one year.

when i asked for an increase after the initial 30% award i turned around and put a claim in for an eed at the same time among several other claims.

so i got the increase from 30% to 50% but was denied an eed on the original 30% claim.

the one year is not up on my right to appeal that decision.

what i am asking for is an eed on the 30% claim and not the 50% or the 20% increase.

on my award letter says march 5 2009 so i guess that was the day the clock started ticking.

and at the end of the award said i could appeal if within the one year limit.

had to edit this i had date wrong at first

Edited August 27, 2009 by skunk