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.

[deltaj]

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.

Using the date of examination is based on a regulation found at 38 CFR 3.157 (b) and I should have mentioned that regulation in addition to 38 USC 5110 (b) (2) and 38 CFR 3.400 (o) (2).