Earlier Effective Date

[Charleese]

Hi all,

My husband spoke with his DAV representative on yesterday concerning an Earlier Effective Date for his injury that occurred in July 2008 when he had a fall which resulted in a spinal cord injury. He was operated on August 16, 2008 and stayed in hospital for 40 days. In October 2008 he had occupational and physical therapy up until April 30 2009. He filed for IU and spinal cord injury in May of 2009. BVA granted him IU and for his spinal cord injury for claimed filed in May 2009 instead of July 2008. He could not file any earlier because he had to wait until all his occupational and physical therapy was over with so he would know what to file for.

Yesterday his DAV told him to appeal RO decision by having a video conference with BVA because he said that would be the earliest of all the other appeals.

My question is (1) do you think they will grant him an earlier effective date of July 2008; (2) have anyone had a video conference with BVA and if so what are some of the questions that they ask; (3) is video conferencing the earliest for appeals.

Thanks in advance for your replies!

[broncovet]

Charlese

I have done quite a bit of study on effective dates, since I am appealing my effective date as we speak.

There is little doubt you need to file a NOD to appeal the effective date.

Probably the best source for a Veteran to research his effective date appeal is here:

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

I have heard advice contrary to your DAV's advice that the video conference was the quickest, however. If you can afford to travel to DC for hearing there, there is often little backlog because most Vets cant afford to travel to DC for a hearing and the VA does not pay for travel to the hearing.

[john999]

Was your husband given a medical retirement from the military? It is a no-brainer that his VSO should have filed a claim on his behalf as soon as he got out of the military. Considering his injury I think he should get an effective date back to one day after discharge since his hospitalization should act as an informal claim.

[Guest]

Hi all,

My husband spoke with his DAV representative on yesterday concerning an Earlier Effective Date for his injury that occurred in July 2008 when he had a fall which resulted in a spinal cord injury. He was operated on August 16, 2008 and stayed in hospital for 40 days. In October 2008 he had occupational and physical therapy up until April 30 2009. He filed for IU and spinal cord injury in May of 2009. BVA granted him IU and for his spinal cord injury for claimed filed in May 2009 instead of July 2008. He could not file any earlier because he had to wait until all his occupational and physical therapy was over with so he would know what to file for.

Yesterday his DAV told him to appeal RO decision by having a video conference with BVA because he said that would be the earliest of all the other appeals.

My question is (1) do you think they will grant him an earlier effective date of July 2008; (2) have anyone had a video conference with BVA and if so what are some of the questions that they ask; (3) is video conferencing the earliest for appeals.

Thanks in advance for your replies!

When did your husband get out of service?

Edited January 15, 2012 by pete992

[Charleese]

My husband got out of service in 1958. He was injured in the service in 1954 for his left knee and left tibia injury. He became SC for his left knee and left tibia in 1983. However because his knee kept locking up on him is the reason why he fell and had to have his cervical spine operated on in 2008. His cervical spine is now rated 20% secondary to his left knee and left tibia injury while in service. The earlier effective date he is trying to get is when he fell in July of 2008 because of his knee locking up on him. The RO denied him for the earlier effective date because he filed his claim for cervical spine injury in May of 2009. We believe it should be July 2008 because cervical spine is secondary to his knee and tibia injury in 1954.

[Guest]

This is just my opinion.

Yes, secondary to his left knee and tibia service connection but VA will only back pay to the date he filed his claim to May of 2009. The only way VA will back pay to 2008, is if he filed a claim in 2008 and it was denied.

[broncovet]

Charlese

While I think it is possible, or even likely, that you are entitled to an EED, I think so for different reasons. To get an EED, I humbly suggest Vets look up the regs on EED's, which, unfortunately, are kind of "scattered" throughout the CFR's and case law.

I am pretty sure case law does not support your position that you are entitled to an eed on the secondary condition because the primary condition was earlier. I still think you can possibly win an EED, but not for the reasons you stated. I suggest you look over the effective date rules, below, and see if any of these apply to you.

The effective date will be the later of the date applied or the "facts found" (usually the date the doc says you are disabled). However, there are about 10 exceptions to these general effective date rules:

Edited January 16, 2012 by broncovet