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

[Berta]

Broncovet is right-----

I agree with his post------

." Nail em on the technicalties, like they are doing to you. Find your loophole to their loophole is what it amounts to."

YES=fight them with their own regulations.

[12R3G]

Bronco / Berta

thanks...yes, I definately need the c-file which I've asked him to request. right now, all I have is the current decision which refers to the orginal claim. Right now, he's happy to get $230 month and new hearing aids. Once that wears off, I think I can get him back to work on this claim.

I like that--loopholes to the loopholes. That pretty much describes working with the VA.

[Commander Bob]

Bronco / Berta

... right now, all I have is the current decision which refers to the orginal claim. Right now, he's happy to get $230 month and new hearing aids. Once that wears off, I think I can get him back to work on this claim.

...remembering the NOD clock is ticking...

[broncovet]

Berta and 123...

Thanks for the compliments. I do try to give Vets good advice, and mainly to not believe the VA. They try to make you believe they will consider all your evidence, and they will follow all regulations (bunkum) and you will have your check in 6 months (double bunkum).

The fact is they will shred anything they can get away with, violate the regulations when it serves their interests (without penalty) and delay your claim as long as possible while telling you they are not your adversary in order to lull you into believing you can send the VA evidence without keeping copies and sending it certified mail return receipt requested. Berta, when you quoted my "loopholes to loopholes", it was a real compliment. We know the Va will weasel out of paying applying their loopholes. WE have to find loopholes to their loopholes, and nail em on the technicalities.

[Berta]

Broncovet-the other day I discussed my offset matter with VA District counsel up here in NY-

actually I love the lawyers who work for VA-

they can read!

But we also discussed another nuance of 38 CFR too -and he immediately knew I was still fighting with good cause for something else that the VA erroneously denied me-

my point is- yes there are Loopholes in everything- but the regulations themselves can often be the best weapons we have on the paper battlefield,-

he knew right away my CUE claim is valid-when I rattled off one section of M21-1 -

in other words- and I know you get this point very well-

medical evidence is what makes claims succeed-but we have to use the exact regs themselves to get far from the loop holes and off of the hamster wheel.

VA has spent considerable time parsing and manipulating my CUE claim- never once acknowledging the regulations and other legal evidence that say I am right.

The VA attorney got it immediately-

but when he asked me what the RO status was -I said the CUE was filed in 2004 and they are still farting around.

why mince words!

[broncovet]

Berta

I am convinced that the VA has absolutely no intention of "speeding up" the claims process, and, instead plans of "farting around" with as many claims as is possible because there is incentive for the VA to do exactly that. Berta, you probably know that when you buy a home, you pay MORE for the interest, than you do for the home. This is a well known fact, and it is easy to break it down with your house payment..the interest on the loan is MUCH more than the principal. If your payment is $800 per month, and you have only owned your home for a few years or months, then your principal will only be about $50 or so and the vast majority goes to interest on the loan.

(The exception is if you are in the top 5% or so of people who pay all cash for their home).

In a similar way, the VA knows that if they delay the Veterans payment, the VA keeps the interest on the money as the laws wont allow Veterans to be paid interest on retro..in fact the retro should be paid at the most current year rate, but it is not. 5 year old retro is paid at the rate it was 5 years ago..not todays rate.

By delaying millions of Veterans claims for years, the VA can pay that claim much later, with inflated dollars, on a budget that will probably increase each year. There is simply no incentive for the Va to get your claim "out" promptly, but rather an incentive for them to delay it as long as possible. As long as that built in "delay incentive" exists, the VA will continue to delay claims for years whenever possible.

You and I can not do that. If we wait to pay our electric bill, it will be cut off and if we want another electric service, we are going to have to not only pay that "old" bill, but we are going to have to pay interest/late charges on it also. Ditto with all of our other bills. Years ago, you didnt have to pay interest on your doctor bills, but that has long since been done away with. If you owe money to the doctor/hospital you are going to be charged interest.

People think that interest is "no big deal"..that it is just a few pennies per dollar..but that is because they can not comprehend compound interest. An example that someone figured out is that America purchased Manhatted Island some 200 and some years ago from the indians for about $25 dollars worth of beads. Well, someone figured out that if you put that $25 dollars in an interest bearing account at about 8% interest for something like 212 years, you could actually purchase the Manhatten Island TODAY. That is, the interest on 25 dollars compounded for 212 years amounts to BILLIONS AND BILLIONS of dollars. One way to figure it out is to use "the rule of 72". This rule says you divide the interest rate into the number 72 to find out how many years it takes to double. So if the interst rate is 8% dividing that into the magic 72 means your money doubles each 9 years.

By using the "rule of 72" often used by insurance agents/financial planners/ other mathematical experts, because it works, that means the original 25 dollars would have doubled about 23.5 times. (212years divided by 9years (the time it takes to double using the formula at 8%) = 23.55 times. This means you take $25 times 2 times 2 times 2....for 23 times. Or, 25 raised to the 23rd power.