38 Cfr Question

[Ricky]

Where in 38 CFR can I find information on the fact that the date VA receives a claim is the date of the claim. ie.. they received my back claim on 2 Feb 04, denied in July 05, Nod sent Aug 05, SOC and rating for back received in Jan 06, (10 percent), and they established the effective date as of Jan 05. Don't know how the he!! they did that but I need to send a NOD for earlier effective date (2 Feb 04).

I have look all over until I am blue in the face but can not find the info needed to support my claim. I know it is there and I am simply wound up and just missing it.

Thanks Ricky

[RockyA1911]

Try this.

CFR38, part 3, section 3.400:

"Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or depedency and indemnity 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."

[Berta]

Ricky- Rocky posted exactly what you wanted-

Did they somehow try to say that the medical evidence is what supported the 2005 date but not the 2004 date?

More than likely- they just screwed up here-

I had found that in a few claims I have handled -they actually used the date of a C & P to acknowledge a disability-then it became the EED----

Aint that the craps?

I am still ticked off about one vet's claim- I wrote his NOD for him-and told them that if he got diabetes at a C & P (they gave him the C & P date for his diabetes retro) then he should file a Sec 1151 because they are saying he got diabetes FROM the VA itself-due to a C & P exam - when the probative medical evidence shows without a doubt-he had it in service (not AO issue)and consistently has been treated for it-and he has gotten SSA for it and his cataracts etc due to it- for over a decade---

Geez- they still owe this guy mega bucks and will do all they can to get out of paying it.

They tried to snooker him out of 4000 bucks with his CAVC lawyer too - that stuff can be nodded also-

and I supported that NOD with their own VA regs.

Boy this stuff gets me mad.

[olenavygoat]

In your NOD I would include the statement that "this appears to be a clear and unmistakable error".

[Guest frank]

Where in 38 CFR can I find information on the fact that the date VA receives a claim is the date of the claim. ie.. they received my back claim on 2 Feb 04, denied in July 05, Nod sent Aug 05, SOC and rating for back received in Jan 06, (10 percent), and they established the effective date as of Jan 05. Don't know how the he!! they did that but I need to send a NOD for earlier effective date (2 Feb 04).

I have look all over until I am blue in the face but can not find the info needed to support my claim. I know it is there and I am simply wound up and just missing it.

Thanks Ricky

hi ricky,my name is frank,welcome veteran,i put in a claim for compensation%penson in 1978,on a va form,this claim was received by va,as it has the va stamp on it,this was for air force%navy,i put both on one form,maybe a copy of your claim might be at va,that,s where i got mine from,,did you try to get your records from va? frank

[Ricky]

Berta - nope they did not give a reason. The SOC which contains the issue along with the new rating decision simply states "due to a new interpertation, a 10 percent rating has been awarded." Now, since this was in my original NOD I also put it in my VA9. However, since they issued a new rating decision on this one issue in Jan 06 as a result of my NOD I guess I need to send a letter and ask that it be taken out of my VA9 as I intend to process a NOD to their Jan 06 rating decision. I messed that one up when I included it in my VA9 as I well know that since it was a new rating I had to NOD it first.

[Berta]

"due to a new interpertation, a 10 percent rating has been awarded."

Say what?

WHat new interpretation?

Are they basing this on a new medical opinion or are they basing on some new reg (that no one knows about)

Is that where they got the EED date? due to a New interpretation?

That is a good one- never heard that before-

Did they explain this at all?

I hope others chime in-I have an issue they put on appeal- 2 years ago that should not have been there-

I spoke to the BVA yesterday about it-

I just received their denial on it and they gave me the one year NOD rights- but them they told me it was on appeal at the BVA ????

They (RO)said to call my local POA because even the 800 people could not understand this-

I called my local POA and he said he could not help as he has no contact with them-no contact with the VARO- but he is a POA-

(He didnt know I filed an additional complaint on him with his boss)

I am baffled-because this sounds like you too-

another stall tactic- send stuff on appeal to BVA that should not be there yet-

By the way-this is not close at all to being a basis for a CUE claim.

You are still within your appellate rights-thus no cue basis.