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When "entitlement Arose"


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Question

I finally found something that seems to clarify the VA concept of when ' entitlement arose'-as it relates to the earliest effective date.

The only thing I really had was a posthumous award letter giving my husband one year additional EED for his 100% P & T sc PTSD .VA used s SSA award date to determine his 'entitlement arose' one year prior to his claim for TDIU.

"Except as otherwise provided, the effective date of an

evaluation and award of compensation based on an original

claim, a claim reopened after final disallowance, or a claim

for increase will be the date of receipt of the claim or the

date entitlement arose, whichever is the later. 38 U.S.C.A.

§ 5110; 38 C.F.R. § 3.400.

An exception to this rule provides that the effective date of

an award for increased disability compensation shall be the

earliest date as of which it is factually ascertainable that

an increase in disability has occurred, if the claim is

received within one year from such date; otherwise, it is the

date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2);

38 C.F.R. § 3.400(o)(2). When considering the appropriate

effective date for an increased rating, VA must consider the

evidence of disability during the period one year prior to

the application. See Hazan v. Gober, 10 Vet. App. 511

(1997)."

http://www4.va.gov/vetapp07/files2/0718055.txt

and referenced within:

http://en.wordpress.com/tag/801-fed-cir-2002-hazan-v-gober/

The 2002 reference to Hazan indicates this reg is still current VA case law as far as I know.

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  • Content Curator/HadIt.com Elder

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  • HadIt.com Elder

If the VA knew you were on SSDI then that is an inferred claim for IU. This is what the VBM says. If the VA knows and documents that you have a SC condition that is a roadblock to employment that is an inferred claim for IU. If you have to prove the VA should have inferred an IU claim that probably means a few years of appeals. What I have seen is that the VA only infers IU when you get a rating of 70% or above. I think this is just not right because the regs just say if your SC condition makes you unemployable then you are eligible for IU.

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I think the "facts found" often means the VA uses the date of the C and P exam to establish the effective date, and that is always crazy. This implies that prior to the C and P exam you were fine, but you must have gotten very sick in the examiners office because after the exam, you are now disabled. This is virtually never the case. If you "got disabled" at the C and P exam, what did the examiner DO to you? The examiner is not supposed to "make you disabled", but instead reports that you ARE disabled.

Imho, the C and P examiner, should opine when the disability was likely to have occurred, rather than make the assumption it occurred at the exam date.

Again, IMHO, if the examiner omits the opinion as to "when the disability likely occurred", this is a "faulty exam" because it is unreasonable to expect that VEteran became disabled during the exam.

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Old JOe

Remember that the doctor statements are the evidence which is ultimately used to grant or deny benefits. The doc says the Veteran has this symptom and that symptom, then the rating specialist looks those symptoms up on the criteria chart, and assigns a rating (or denies). The VA is supposed to use the criteria. They are not supposed to rate you based on whether you belong to the tea party or the tail-gate party.

Unemployability is somewhat different than medical "percentage level" criteria. You dont "increase" in unemployability from 20% unemployable up to 100%....you either meet the TDIU criteria at any given time or you dont.

But...lets use depression as an example. Lets say you were zero percent depressed in 1995, in 2003 your symptoms were consistent with the 30 percent level, and in 2007, they were consistent with a 70% rating.

If you look at the IU criteria, you would see, in this case, you dont meet the IU criteria until you are 70% disabled, which would mean that your effective date would be 2007.

Keeping with this example, if you lost your job in 2004, and told your doc about it and he put it in your medical report, you could try for a 2004 effective date, arguing the "facts found" was that you were unemployed in 2004. However, the VA would probably counter that you did not meet the criteria until 2007, when you were rated at 70%, finally meeting the criteria for TDIU.

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Yes, I agree that the C and P exams are often deficient in that they do not give an effective date...so the VA assumes that means the date of the exam. It usually results in the Veteran getting an unfair effecitve date.

Edited by broncovet
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Old JOe

1. Filing for SSD does not constitute an informal claim at the VA for IU. The VA would not know that you filed for benefits with another agency. However, IF YOUR VA DOCTOR OR VSO DOCUMENTED that you had filed for Social Security benefits for unemployability FOR conditions of which you are SERVICE CONNECTED, that medical exam may be used as an informal claim for effective date.

Your "reasonably raised" claim for IU does not have to be on a special form, it just needs to be documented.

2. Your request for an increase in rating could be a "reasonably raised" claim for IU. If your VA doctor or VSO documented, for example that you were seeking an increase in disability because you cant get a job, that could well establish the effective date of your informal claim for IU.

3. Your award of IU establishes your entitlement to IU, and you need only to establish that you informally filed a claim for IU earlier. Dont worry about when the formal IU claim was filed as your formal application for benefits will suffice for both. You see you had already filed a formal claim. One is all that is necessary. You dont need to file 6 formal claims for 6 different conditions, but you do have to "specify the benfefit sought". You cant expect the VA to guess you were seeking benefits. But, the VA is required to give you a "liberal interpretation" of your filings. You do not have to say, "I want to apply for Total Disability due to Individual Unemployability". You can probably say something like, "My PTSD caused me to lose my job and I cant get another one" or something similar, as long as its documented in your records.

4. Your appeal could establish an EED for IU with the caveat: YOU ARENT getting any benefits before you applied. The effective date will be the later of When you applied, or when the "facts found" determined you had IU.

Bottom LINE:

To be successfull at an EED, you need to go over your medical records, looking for when you told your VA doc or other documention stating you are unemployed and this has to AFTER you filed a formal claim for benefits. If you told the VA doc you were unemployed in 1948, but you never applied for benefits until 2002, you wont get benefits until 2002.

Edited by broncovet
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