ptsd Effective Date

[deserteagle]

I recently had my claim for PTSD "reviewed" as part of a new claim that I had opened for hearing loss. The date of claim for the hearing loss and the review was 8/14/2009. I was initially rated 50% for PTSD in my claim dated 4/2008 which was approved 9/2008. With this review, I received 100% PTSD with an effective date of 10/6/2009 (the date of my review C&P exam). I was wondering if the effective date should be at least 8/14/2009 (the date of claim) or even backdated to the original date of date in 2008. Thanks for the help!!!

[sixthscents]

Umm... well unless something has changed it should be date of claim. I've seen the VA do this again and again though stating there was no diagnosis until the C&P. If you have a previous diagnosis, then I am certain it USED to be actually the date of claim. Has this changed since I've been gone anyone? If is is the date of claim, I'd file a NOD.

Help me out here Pete or Jbasser, I don't want to put out info that might be wrong if something has changed and I have been out of the loop for 2 years really, except for a few claims here and there.

carlie, Berta anyone? You all know I odnt weant to give wrong advice but I am certain it used to be date of claim for a pre-existing diagnosis. Further, I've seen date of onset used, if that could be proven and was before date of claim.

For instance a vet goes into the VAMC emergency room cause his bladder quits working. Eventually a diagnosis of neurogenic bladder emerges, but the rater tried to go with the date of C&P. When in fact the date the vet went to the emergency room was the date of onset and should have been used. I won this argument in a NOD (actually one of my OWN claims), but don't know if this has changed.

Also please ref CFR 38 here so I can go reag it a refresh my memory. As well as M21-1MR if possible. If too much I'll look it up myself, but I have to order the new CD. Mines old.

[jbasser]

The date of the claim of the date entitlement arose whichever is later. It was a review and increased based ont he VA review, You didnt ask for an increase but it seems like the VA's reaction to the Ear Claim was to review your PTSD claim.

You got lucky. It seems to have backfired on them.

J

[sixthscents]

Ok so the claim date should be the date of claim, or date entitlement arouse which ever is "later", or whichever is more "advantagoeus to the veteran"? I seem to remember that statement. And by later do you mean later as in whichever is first, the date of onset or the date of claim?

Bob

[jbasser]

O. Increases 38 U.S.C. 5110 a and 511 0 B 2, Pub. L. 94-71, 89 Stat. 395; §§3.109, 3.156, 3.157):

(1) General. Except as provided in paragraph O 2 of this section and §3.401 b B, date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.

The effective date the evidence showed you were entitled to an increase should be your Effective date.

J

Edited November 15, 2009 by jbasser (see edit history)

[sixthscents]

OK thaks J...

Bob

[deserteagle]

Thanks everyone. I guess that I should thank my lucky stars that I didn't get a decrease out of this. Best just leave well enough alone in this case. Thanks for the info, this sight is so very helpful!!!

[jbasser]

Get a copy of your records to see if you can decipher the date you were entitled to an increase, It could be as easy as a date a doc said you were unemployable or unable to work. That would be the date and it should be a simple fix. Of couse I use the word simple very cautiously when dealing with this complex monster known as the VA.

J

[deserteagle]

When or if I find that, how would I go about getting that changed? Do I have to file an appeal or NOD? Or is this something that is a little simpler than that?

[halos2]

Mine granted earlier this yr like Mar was date of claim...around few yrs back, however it was for the claim I appealed. Not a new claim I put in for.

In fact a few yrs back I put in for an increase and thats when they really F'ed with me/CLAIM for a few yrs. When they reviewed my claim they said the rater should not have proposed to sever my claim, and the VA cued itself for a low rating and increased it by 20% above the original rating.

Like john basser said you got lucky when you put in for your hearing loss(did you get hearing loss rated here too?) they review all records when they search your claim file...the rater assumed you were rated too low, so that's probably why you were granted this increase. So the date they did the review of your exam records 10-6-2009 would be the effective date for this. Looks like you did well here with this increased rating. :) I am curious why you did not try to appeal the original PTSD grant that was approved in 09/08? Like for an increase? Did you have a VSO?

[Berta]

If the medical evidence revealed you should have been 100% for PTSD in the original claim (April 2008)then that is the proper retro date for PTSD.

Do you get SSA solely for PTSD?

If so what is the date of the SSA award for onset of PTSD?

How can a vet have 50%,get a C & P and then get 100%?

It means the C & P doc gave the vet 50% more stress from PTSD ! :) (Sec 1151!!!)

But seriously- you could ask them to CUE their decision -but you need strong medical evidence to challenge the date they gave you.And they should have known of this evidence.

The VA does take letters seriously when the claimant tells them a decision they made in an award contains clear and unmistakable errors and the claim is still in appellate process (as yours is because you do have time to file NOD).

I made this request when I got an incorrect award letter this May.

I recently got their 'corrected' award letter and it is still wrong.My file is still open waiting my response.

I am sending them another request to correct their clear and unmistakable errors- which grew-because the new corrected award letter contains a doozy-and made matters worse.It is a prime facie exampkle that these raters cannot read or comprehend VA case law.

The more a claimant draws them out- the easier it is for them to make more mistakes.

If you take this route (it has worked for me in the past when letters did not comply with established case law and regs) it can generate a faster response but keep your calendar marked for the NOD timeframe.

You could also shape this-instead- as a Request for Reconsideration of the EED.

If they had valid medical evidence that you were 100% when you filed the claim-they should have awarded you 100%.

I hope you have a vet rep and that they will support you and advice the best way to go here.

In my letters claiming they committed CUE-I sent them copies of the exact regs they broke or ignored.

Since I had not one but 2 erroneous award letters and have to again send them what they already have-I made extra copies and sent it all to the General COunsel (my situation has something to do with them too)this time

as well as in a formal complaint over some crap a supervisor gave me last week-to Secretary Shinseki.

A few other entities are getting word of this too-

It took me 6 years to prove my husband died from AO, granted by the BVA, and I am being denied all of the benefits of the Nehmer Court Order and they continue to fail to rate him and ignore his eligibility to SMC.

Every time a vet accepts what could be the wrong EED- VA saves money.

I think they deliberately award the wrong EED sometimes hoping the vet will never challenge it.

[deserteagle]

Yes, I do get SSDI for PTSD effective December 2008. I sent this letter to them but have gotten no response as of yet. I am also waiting on my mental health records from the VA to review those. I also have a meeting with my VSO this week. Maybe hecan tell me the best option. But I do not feel that the date of the exam should be the effective date. Even my shrink has said that he thinks that I am unemployable numerous times throughout he past year. So I don't even know where to begin. I will keep you posted and thanks or the help.

[john999]

The VA pulled that stunt on me with DMII claim. They made the effective date the date of my exam. So according to the VA I got DMII on the date of my c&p. Before that I was OK. I was already TDIU, so I did not make a production out of it, but they cheated, and if they did it to me it is probably SOP.

[12R3G]

Yes, I do get SSDI for PTSD effective December 2008. I sent this letter to them but have gotten no response as of yet.

Just to be clear, you notified the VA of your SSDI award for PTSD in Dec 2008? Are you certain they received the letter (return receipt or IRIS response or something)? Knowing they received it negates the "well, we never got that" argument.

Mailing the SSDI award letter establishes that you are unemployed and unemployable (otherwise you wouldn't be eligible for SSDI) and is an informal claim for benefits. Since you already were SC's for PTSD, this informal claim was for an increase in benefits, thus not subject to the 1-year rule for filing a formal claim to perfect the informal one.

Personally, I would begin with a request for reconsideration arguing that you filed an informal claim for an increase in benefits on Dec XX, 08 (or whenever your SSDI award letter was dated) buy providing the VA with the SSDI award letter. The C&P verified what the VA should already have know--you were unemployable due to your PTSD. Tell them you want the EED of Dec XX, 08 (informal claim date).

Last wrinkle--when did you separate? If you submitted your SSDI letter to the VA within one year of separation, then I would ask for the EED of the original claim date of Apr 2008.

That help? Congrats on the 100% rating; don't let them cheat you out of months of benefits they owe you by letting the Oct 2009 ED stand.

One final thought--with a 100% rating, you should as for P&T in order to get ChampVA and education benefits for your dependents.

[sixthscents]

Really good advice 12R3G... um if he filed within one year odf discharge wouldn't the effective date be date of discharge? Just a thought I might be wrong or they may have changed the reg I'd have to check, but otherwise really really sound and coherent advice. I look foreward to reading future posts from you.

Bob Smith

[john999]

The effective date is one day after discharge. I filed within one year of discharge and it went back to the day after discharge. I became disabled within 24 hours according to the army.

[deserteagle]

12R3G, thanks for the advice. How does one ask for P&T? Is this something that will come with time or something that I need to apply for? All this stuff is new to me as I never thought I would get 100% and never looked into the benefits of being 100% or P&T. What other benefits come along with being 100% SC?

[deserteagle]

Also, 12R, how is a reconsideration different from a NOD? I am just wondering if there is a difference and if one would be quicker or "easier" than the other.

[12R3G]

deserteagle

ahhh...to many things to remember! assuming you filed your initial claim within 1 year of discharge, then the EED for your 100% PTSD rating could be the date of your original claim (which in turn should be the day after your discharge date). I would argue that your infomal claim of Dec 2008 was well within the 1-year limit and should allow the EED to move back to Apr 2008 (original claim). that's best case; worst case is an EED based on the date you filed your informal claim (SSDI award letter).

No matter how you slice it, the Oct 2009 start date is wrong. (thanks for catching that sixth...)

Reconsideration is faster, but does not protect your appeal rights. With a reconsideration, your are asking the RO to "take another look" and reconsider the previous decision--in this case the effective date--based on the record and anything else (like a statement reminding him/her that submitting the SSDI award letter in Dec is effectively an informal claim for benefits and that any claim filed within the 1st year after discharge dates back to the day after discharge).

note: if the original rating was correct and since that rating your condition has worsened, then the claim for increase establishes the ED...in your case you are arguing that the C&P examiner understated the severity of your condition, or the RO under-rated the condition, or both.

A NOD is the first step in the appeals process. Without filing a timely appeal, VA claims are "final" after one year. You can file to reopen, but the VA is the gatekeeper and and requires "new and material evidence" (tons on this site) submitted to justifiy reopening the claim. By filing a NOD within the 1-year deadline, you have appealed the decision, meaning that if you ultimately prevail, the VA will owe retro pay back to the orginal ED (claim filing date, day after discharge, etc.). Usually, when filing a NOD, you ask for a de Novo review with a new DRO. in english, you are asking new team, led by a DRO, take a new "first look" and essetially start from scratch without regard for the current decision.

Ordinarily I would ask for a reconsideration (the faster route) since this should be a fairly simple fix. However, I'm not really sure about appeal dates in this case. You might want to go directly to a NOD and request the de novo review stating the facts and providing a timeline for the DRO. Make it as simple for him as humanly possible.

[john999]

If it were me I would file an NOD and ask for a DRO Hearing. This way to protect your right to go on to the BVA. You also protect the earliest effective date. I don't really think that a reconsideration will always faster and better than a regular NOD and DRO Appeal. As soon as you get your decision the one year clock starts to tick. If you ask for reconsideration you need new evidence and the clock does not stop. I just don't think their is any magic way to win claims faster. When you get reconsideration the same people that screwed you the first time are the ones who will reconsider your claim. You must have new evidence, or you will get the same decision. You got your 100% rating. Now you can go for the EED. Ask for housebound as well while you are at it. I think you should get the EED to the date after discharge. How the hell did the military discharge a guy with obvious severe PTSD with no rating, or did they medically discharge you? I don't see how you can go from being OK one day and 100% disabled one day later. I am blaming the military for this not you. If you got anything but a medical discharge I would appeal that discharge and ask for a pension. You can get Tricare out of it even if the VA money offsets the pension money.

[Ricky]

First please define "review". Do you mean you asked for an increased rating for PTSD? or was this just something VA did as part of their normal review process?

If you asked for an increased rating based upon medical evidence in your possession showing the increase in the disability then the effective date should be the date of the claim (the date of your request for an increased rating).

If it was part of the normal review process that we all go through and you had no new evidence then the effective date will be the date of the C&P exam.