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"liberalizing Regulation"


broncovet

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Right- not a Nehmer claim but a AO claim that EED for was liberalized due to the AO regulation date.

From the decision you posted:

"The veteran's claim for

service connection was filed within the year after the

effective date of this liberalizing regulation. Given these

circumstances, an earlier effective date of May 8, 2001 is

warranted for service connection for diabetes. However, the

law does not permit an effective date earlier than May 8,

2001 for this benefit. Sabonis v. Brown, 6 Vet. App. 426

(1994)."

I think this is a point many reps do not check when they see these types of AO decisions, or maybe even many vets do not question their EED.

Fortunately this vet did and he was right.

Thanks for bringing this to our attention again.

We had a vet here last year who I gave link to the reg date for his AO disability, and he sent them the reg and got more retro.

It doesn't work in every herbicide non Nehmer claim , but worth knowing about it.

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Yes, Berta. I do think this is more general, and does not " just" apply to AO/Nehmer class Vets, but ANY Vet who applied and then there was a "liberalizing regulation" that is more favorable to the Veteran than a previous regulation. The Veteran is supposed to get the more favorable of the "old" or the "new" regulation. There have been many regulatory changes over the years.

Some of it is just a change in interpretation, where court cases have "liberalized" Vets treatment. Since it often takes the VA decades to finally decide a claim, the Veteran can then apply for an eed based upon a "liberalizing" regulation.

An example of this may be "the old VA school" which required the Veteran file for TDIU on the form prescribed by the secretary. The VA often made the date the Veteran filed the formal TDIU form, the effective date. However, later case law says that a Veteran need not file a "formal" TDIU form.

You see, once the Veteran files a formal claim, any other claim(for increase) refers to that formal claim, so the Vet need not file 10 formal claims for 10 conditions, including TDIU. One is sufficient. No, I am not recommending a Vet deliberatly skip filing the formal TDIU form...if there are "liberalizing" laws, there are sure to be ones that are making benefits more strict and harder to get, so dont deliberately skip the formal TDIU application. However, if you have been awarded TDIU and the VA gave you the effective date of your formal claim, you may consider appealing for an EED, especially if you told your doc that your PTSD caused you to lose your job and you can no longer work...and then sent the form in 2 years later.

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I am not sure if I posted this earlier, but the purple heart has a whole section on Veterans getting an earlier effective date, that probably would be a productive discussion on this board:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

Notably, the purple heart demonstrates that the VA has to notify the Veteran of time limits, and, if they dont, they can not enforce them:

This Purple heart training article should be gone over with a fine tooth comb by anyone seeking an EED, and I think many could get an eed if they only knew about this.

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