Effective Dates For Reopened Claims

[12R3G]

I'm hoping for some help/clarification. I helped by Father in Law finally get a disability rating for hearing and tinnitis. He filed his original claim in 1995 and was denied as hearing loss was not in his STR, and as result he didn't pursue. I convinced him otherwise, and he just got a 20% award and can (finally) get new hearing aids.

My question is this...his effective date for the award was the date he filed the claim to reopen with new and material evidence. but, he his original claim was 14 years ago. To make matters a little more interesting, he thinks it was within the 12 months before he filed that he asked his VA doctor about hearing aids. Alll is doc said was he wasn't eligible--he had no SC disability (again, did nothing)

Here is where I get confused. Looking at the M-21MR for reopened claims:

Para 20 ©: Effective dates are governed by 38 CFR 3.400(q)

Para 22. (A): The date of receipt of statements from the claimant that are held to be new and material evidence may constitute an effective date for increased benefits under 38 CFR 3.400(q).

38CFR 3.400(q): (q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304((1) of this chapter.

(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

But, right below, 38 CFR 3.400®: ® Reopened claims. (§§3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, except as provided in §20.1304((1) of this chapter.

[3.156(D): (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. (The rest don't apply in this case)]

So, if the chat with the doc was documented, then that should be an informal claim date provided it was within the year before this latest claim was filed. but, based on the seemingly conflicting information above, can he ultimately preveail in a request for an EED back to his original claim? To further flesh this out, he filed in 1995--about the time he got hearing aids on his own dime. His letters, from friends and both current and former doctors , document hearing loss dating back well before the 1995 original claim was filed.

I'm thinking NOD for EED back to original claim...

Thanks in advance / Charles

[halos2]

I believe as he did not pursue it back within the time frame of the original claim this is moot. However others with more experience may be able to find another path within the regs. Good luck either way, and glad he has you helping him out.

I'm hoping for some help/clarification. I helped by Father in Law finally get a disability rating for hearing and tinnitis. He filed his original claim in 1995 and was denied as hearing loss was not in his STR, and as result he didn't pursue. I convinced him otherwise, and he just got a 20% award and can (finally) get new hearing aids.

My question is this...his effective date for the award was the date he filed the claim to reopen with new and material evidence. but, he his original claim was 14 years ago. To make matters a little more interesting, he thinks it was within the 12 months before he filed that he asked his VA doctor about hearing aids. Alll is doc said was he wasn't eligible--he had no SC disability (again, did nothing)

Here is where I get confused. Looking at the M-21MR for reopened claims:

Para 20 ©: Effective dates are governed by 38 CFR 3.400(q)

Para 22. (A): The date of receipt of statements from the claimant that are held to be new and material evidence may constitute an effective date for increased benefits under 38 CFR 3.400(q).

38CFR 3.400(q): (q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304( (1) of this chapter.

(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

But, right below, 38 CFR 3.400®: ® Reopened claims. (§§3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, except as provided in §20.1304( (1) of this chapter.

[3.156(D): (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. (The rest don't apply in this case)]

So, if the chat with the doc was documented, then that should be an informal claim date provided it was within the year before this latest claim was filed. but, based on the seemingly conflicting information above, can he ultimately preveail in a request for an EED back to his original claim? To further flesh this out, he filed in 1995--about the time he got hearing aids on his own dime. His letters, from friends and both current and former doctors , document hearing loss dating back well before the 1995 original claim was filed.

I'm thinking NOD for EED back to original claim...

Thanks in advance / Charles

[12R3G]

halos...thanks...I should have mentioned the VA in the Rating Decision he just received stated it was a reopened claim with N&M evidence. Now I'm trying to get 14 years of back pay (although, at 20%, it's not going to be very big payday).

[jbasser]

What exactly did the original denial letter say. That is going to be the Key factor here.

J

[Berta]

If they made a clear and unmistakable error in the past rating decision- a Legal error only-

he might be able to recover a better EED.

CUE claims depend on established medical evidence that VA had in the C file at time of past rating.

If they made any legal error in the decision, this would be a basis for CUE.

There is a wealth of info here about CUE claims.

They are hard to win but not impossible to succeed in.

Was the new award based on something in his SMRs or due to his MOS?

[12R3G]

What exactly did the original denial letter say.

He didn't keep a copy of the denial letter (not that they said much back then), but in the rating decision the VA stated his earlier claim was denied because there was no mention of hearing loss in the STR.

Not long after he separated (and we are talking 1959), a client--who happened to be an MD--told him he probably had a hearing loss (he was mid-20's at this point) and had him come in to test. Same doc wrote a letter for the reopen. That combined with a buddy letter (for hearing loss prior to filing the orginal claim) and a current IMO from an audiologist got SC.

[12R3G]

Berta

Since I haven't seen the original denial, I'm not sure if there is even a remote possibility of a CUE, but since the denial is based on it not being in his STR, I'm guessing not. Of course, not having seen his STR, I can't say for sure.

Was the new award based on something in his SMRs or due to his MOS?

His MOS--he was an armor officer back in the day before hearing protection was issued. That and doctor IMO/buddy letters describing the hearing loss long before he filed is orginal claim.