ptsd When "entitlement Arose"

[Berta]

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.

[jbasser]

Knock it off folks and focus on the issue.

If the VA determines and determination I mean my medical evidence that a condition has worsened and you file a claim within 1 year for increase than the effective date will be th e date of the exam or test that proved you deserved an increase. Thus the date entitlement arose. SSDI is not an inferred issue, SSDI looks at the tortal disability picture. The VA only looks at Service connected conditions.

J

[john999]

The Veteran's Benefits Manuel does address the issue of inferred claims for TDIU. SSA and VA are different but being on SSD is good evidence that you are unemployable for VA purpose if the SSD is for SC condition and the VA knows it. I would say that Old Joe does have a shot at an EED if the VA knew he was on SSD for SC condition. Joe is going to have to fight for it. There are probably thousands of vets who were on SSD for years before claiming TDIU. That is why the VA does not infer TDIU claims for them because of potential cost. If the VA knows you are unable to work for a SC condition they should infer a claim for TDIU. This is according to the VBM. The VBM says if the VA has good reason to suspect you are unemployable for SC condition they should infer TDIU. The only way to find out is to claim an EED based on your SSD status and VA records. I wish we had a lawyer here who had worked on one of these EED claims. I am interpreting the VBM according to the way I read it, so I am not an authority.

[jbasser]

There is no relationship between SSDI and the VA except for the VA using SSA records to determine death as well as DIC claims for ths same purpose.

To say the VA has to adhere to SSDI decisions is a pipe dream. There was a bill introduced in the last congress that would have leveled theplaying field for this issue but it was in committe during the last GE and is now dead. I hope someday that is passed for the sake of all disabled vets.

J

Edited February 8, 2011 by jbasser

[deltaj]

i didnt get but 20% until they accepted SSDI decision as evidence than everything I FILE was approve 100% no exam from 20%

But thats your beliefs and thats a pipe dream because .Iknow it happen to me I'm done Oldjoe!!

OldJoe, Go to the Social Security Office and request in writing that Social Security send a copy of your medical records to V.A. in support of your pending claim for TDIU.

[deltaj]

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.

I am sure your death claim was helped by a regulation at 38 CFR 3.153 on receipt of evidence by Social Security and V.A.

[broncovet]

Just because you get SSDI does not mean you are eligible for TDIU because TDIU is for service connected conditions only, and SSDI just means you are disabled for any reason.

In the past if you read your SSDI decision, and if it states you are disabled due to conditions for which you are service connected, then the VA is going to have to look at that.

Basically what we think means pretty much nothing anyway. It sounds like you are going to have to convince a BVA judge that you are entilted to an EED.

I suggest you start reading CAVC cases, especially "panel" or "en banc" decisions, which set a precedent, trying to find one most like yours. Then, when you appeal, if you are appealing pro se, then cite those decisions in your "arguement" for an EED.

I also recommend you read up on Informal Claims and Inferred Claims, and how they can establish the effective date. I do not recall reading anything about SSDI being regarded as an informal claim. Remember your effective date is the later of the facts found or claim date. If you read about that year earlier thing, you will see that only applies in special circumstances.

When you are dealing with the VA, it is not about what I think, or what you think. Its about what the judge says, and he is gonna "say" pretty much what another judge said, in a similar circumstance.