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

[jbasser]

Have him call the 800 number and send you a copy of the decision.

Do you have the SMR?

He should get it. It would be wise to get a copy of the entire claims folder.

As a matter of fact, I strongly urge that to happen asap.

J

[Commander Bob]

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)

I don't see a cue based on what his doctor said. As was mentioned earlier, you do need a copy of all of his records, including that doctor's note, 12 months before your father-in-law filed. Well at least he got new hearing aids. Best wishes for a sucessful outcome.

Edited October 19, 2009 by Commander Bob

[12R3G]

Yeah...that was the real reason for all of this. The 20% is just icing on the cake so to speak. I told him to request a copy of his C-File and get a copy of his VA treatment records next time he's there.

[carlie]

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(B)(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(B)(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

12RG3,

"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".

This sounds right to me, if a factor of the decision to grant the claim

is based on the N&M evidence, which re-opened the claim would be correct.

He had a year to disagree with the rating decision 14 years ago, that rating

decision became final. The only thing that could overcome the ED to go back to

the original claim would be to submit a claim of C&UE (properly) and win.

In my opinion I do not feel he could ultimately preveail in a request for an EED back to his original claim.

"12 months before he filed that he asked his VA doctor about hearing aids".

I do not think this will get a 12 month EED as he simply inquired about

hearing aids.

"His letters, from friends and both current and former doctors , document hearing loss dating back well before the 1995 original claim was filed".

I feel that unless the letters and people above are licensed Audiologist that reviewed his records and provided a medical opinion relating the conditions to active duty, fully supported by medical rationale, then there is no,

medical documentation relating these disabilities, "back to his original claim".

jmho,

carlie

[broncovet]

I agree with Basser and Berta. Ask for a copy of the original rating denial decision, then look carefully at it for CUE. If you can find references to a hearing loss in his SMR, then that would mean that the VA failed to consider that evidence (as grounds for CUE).

There is another possibility of CUE here also. Did the VA provide a C and P exam way back in 95, and, if so, did the audiologist C and P examiner offer an opinion as to the cause of the Veterans hearing loss. If the VA failed to request a C and P and denied it anyway, then you may be able to get a CUE on that basis.

My hearing loss claim was denied EVEN THO the audiologist stated that my hearing loss was most likely due to military service. They used the tired excuse that there was no record of hearing loss in my SMR.

Upon appeal, the BVA basically said..gee the audiologist said it was caused by military service, so what is the problem? And they granted SC based on the audio report.

Remember, the VA delays always, denies when they can, and only approves when they have too, and then they lowball you. You have to fight for every cent you get from the VA unless you happen to be a VA executive requesting a bonus..then its automatic and without delay.

[john999]

I think the VA has a stamp with wording "Vet's SMR's are silent on hearing loss, PTSD, Foot, back problems.....etc. That is a standard answer even when it makes no sense. They told Commander Bod he couldn't have PTSD because his SMR's did not show it. That is absurd and goes with hearing loss that does not show up right away.