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!!!

[deltaj]

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.

When were you discharged from the military? I agree that you do not want to ask for reconsideration. You should always file a carefully worded Notice of Disagreement within the appeal period of each decision with the help of your representative. Remember you get only one Notice of Disagreement with each decision so you need to address the issues of effective date, percentage of rating, and evidence of record under V.A. law and regulations in each Notice of Disagreement. I know this seems overwhelming but sit down at your computer and type in a search under United States Code and then after you open the link search for the citations Title 38 USC 5110 and then read 38 USC 5110 ( b ) (1) and 38 USC 5110 ( b ) (2) carefully. [Remember 38 USC 5110 ( b ) (1) is applicable for the effective date of all claims filed within one year of discharge.] Also read look up 38 USC 5108. Next type in a search for Code of Federal Regulations and then when you open the link click on retrieve by CFR citation. Then individually look up the regulations I cited in my above post. You can do this and you should because nobody cares as much as you do about your claim and the effective date as you do.

Edited November 13, 2009 by deltaj

[deltaj]

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.

Pension is not something you want to ask for through V.A. I think John means file some sort of appeal with the military seeking military retirement and I'm not sure how that is done.

[deltaj]

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!!!

Please see my above posts responding to some of your specific questions.

[deserteagle]

Clown...I did not ask for an increase in my rating. I just opened a new claim in 8/2009 for hearing and the VARO "reopened" the PTSD claim. The only reason I found out about it is that I got a letter in the mail with a mental health C&P exam. I called the RO and found out they attached the PTSD claim to the claim for hearing. I am still not sure what the PTSD part of the claim was considered, a review or increase request. I will have to pull out the decision letter and get you some exact wording.

Delta...I was discharged Nov2004 from the service. The Army neglected to tell me about the one year rule when I was out processing. I don't know if it is relevant or not if I am in the IRR still. I stopped working in April 2008 when I was hospitalized for PTSD (long story...probably heard it before though). I filed my claim that very month and got a decision Sept 2008 of 50%. I then filed a claim with SSA and started receiving that Dec 2008.

I know these are a whole lot of dates but I even I am confused as to how this works. I will into the regulations that you all have posted and I am going to meet with my VSO either this afternoon or first thing Monday. Thanks again for all the help!!!

[deltaj]

Clown...I did not ask for an increase in my rating. I just opened a new claim in 8/2009 for hearing and the VARO "reopened" the PTSD claim. The only reason I found out about it is that I got a letter in the mail with a mental health C&P exam. I called the RO and found out they attached the PTSD claim to the claim for hearing. I am still not sure what the PTSD part of the claim was considered, a review or increase request. I will have to pull out the decision letter and get you some exact wording.

Delta...I was discharged Nov2004 from the service. The Army neglected to tell me about the one year rule when I was out processing. I don't know if it is relevant or not if I am in the IRR still. I stopped working in April 2008 when I was hospitalized for PTSD (long story...probably heard it before though). I filed my claim that very month and got a decision Sept 2008 of 50%. I then filed a claim with SSA and started receiving that Dec 2008.

I know these are a whole lot of dates but I even I am confused as to how this works. I will into the regulations that you all have posted and I am going to meet with my VSO either this afternoon or first thing Monday. Thanks again for all the help!!!

You mention a hospitalization in April 2008 and the initial grant of a rating effective April 2008 in a rating decision dated in September 2008. I think you stated that you filed an original claim for PTSD in April 2008. Were you in the hospital when you filed the original claim for service connection of PTSD? Were those hospital records considered by V.A. in their original rating decision which gave you 50%? Have you ever completed an application for TDIU through V.A.?

[12R3G]

desert--all the background helps.

Since your original claim was filed in April 2008, that is the earliest effective date for benefits.

Timeline: You were hospitalized in April 08 for PTSD, filed that month and received a VA rating decision in Sep 08 (50% PTSD). Roughly 3 months later, SSA granted SSDI benefits which translates into unemployeable. Then you forwarded the SSDI award letter to the VA. You filed a new claim for hearing loss [Aug 09?]. In addition to the C&P for hearing, you had a C&P for PTSD on Oct 09 which resulted in a 100% PTSD rating effective the C&P exam date.

did I miss anything?

I think the VA did respond to your submitting your SSDI award letter--just not to you. They most likely recognized the informal claim which is why you had the "reveiw" exam. That part is a guess, but it sorta makes sense.

At any rate, the VA re-evaluates your PTSD to 100%, but sets the date as the date of the review exam--typical VA.

Mailing the SSDI award establishes an informal claim, so worst case this is the date the VA should use. But, and this is a key point to discuss with your VSO, did you really go from 50% to 100% in Oct 09 despite being rated unemployable by SSA in Dec 08? I'm thinking not...

Reconsideration...NOD...pro's and cons for both--discuss each with your VSO. I would argue for a 100% rating effective the date of your original claim--Apr 08. The only other date I would accept would be Dec 08 based on the informal claim.

keep us all posted.