E.e.d. Early Effective Date Appeals Process

[KDM]

I was intially given a non compensatiable ie zero perscent on scar and inguanal hernia.

I appealed in 2004 and had a CNP in 2012 they said they found new evidence or there was a new disabiliyt ie Pain .

I am stating the pain was already there and this is an appeal for an upgrade they paid me the ten percent backed to march 2012 not 2004 and say they have upgraded my scar and hernia to ten percent hence I should be given the back date of 2004 of my appeal as I am saying the same conditins exist adn there is no new claim in period please explain this to me I am looking for a EED.

[Berta]

I assume you were denied prior to 2004. Do you mean this same claim was pending since 2004???? Possible, I had one that took 8 years....

If it was denied and unappealed prior to the March 12 date (I assume this might have been a re opened claim, actually a 'new claim') then the only way to get a better EED would be to file a CUE claim on the older denial.

There is extensive info here on these types of claims.

They are very hard to win.

You must have had, in VA's possession at time of the 2004 appeal, enough established medical evidence that warranted a rating higher then the Zero % when compared to the VA Schedule of Ratings (available here at hadit) at time of the alleged CUE in the 2004 decision.

If that medical evidence should have established a 10% rating at that time, then the VA made a clear and unmistakable legal error in deciding the "0" %.

Our CUE forum has everything you need to know about CUE.

Read my topic there on how I won my CUE claim.

Basically the VA had in their possession,at time of a 1998 decision, enough medical and legal evidence to warrant a proper posthumous SMC award to my deceased husband.

For 6 years the Buffalo VARO refused to read my legal evidence ( they already had the medical evidence)

Under my Nehmer award ,done in Philadelphia, they awarded this CUE claim. Total timeframe was 8 years and Buffalo had copies of my evidence (medical and legal) which I had enclosed along with the original claim I filed in 2004. There is no time frame on CUE claims.

They are controlled by the regulations ,to include the Rating schedule, at the time of the alleged CUE.

I knew I would succeed at the BVA but the claim never got there because the Nehmer AO claims people, at Phila VARO, could read.

Edited April 6, 2013 by Berta

[broncovet]

Berta posted:

" the only way to get a better EED would be to file a CUE claim on the older denial."

With all due respect to Berta, I disagree and I shall explain my reasoning. I do know that I am in the minority and most will side with Berta.

However, My case assumes this is not necessarily true, tho I will agree that most Vets advoctes take a similar position. I beleive there are exceptions, in fact several. One exception is 38 CFR 3.156 with new and material service records. This will allow an EED even with a prior unappealed decision. But its not the ONLY way either!

Here are some more:

Chapter 14, Veterans Benefit manual explains common VA effective date errors. The Purple heart used to have a summary of this used in training, however, it looks like MOPH training has been removed online.

[john999]

If you have new and material evidence it must be evidence that should have been before the adjudicator, but wasn't, or was before the adjudicator, but excluded from examination or review. Just because you have new evidence does not get you an EED. In my CUE I ask for an EED of rating of 100% because evidence that was in the record was not reviewed or examined by the adjudicator. This is not new evidence. It is evidence that was wrongly excluded. However, the VA still argues that this is not undebatable that exluded evidence would have turned the tide. This is a fallback position on all claims for EED unless you find lost SMR's, and even then the VA can still argue that your evidence in terms of ratings and EED is not undebatable.

[broncovet]

John...

You dont have to meet the "undebateable" standard of review to qualify for an EED under 3.156. But you do have to meet the higher standard for CUE. This is why you only seek "CUE" if nothing else works.

[FormerMember]

As with all legalities 3.156©(3) specifies that An award made based all or in part on the records identified by paragraph ©(1) of this section

That means what it says. If VA can weasel out of it (and they try regularly), they will say the records you produced are (or were) not material in the grant. You have to be anally perfect when you bring them in and present a cogent argument as to why you would not prevail with an EED without them. It is not as stringent as a "manifestly change the outcome" standard (CUE). It's more along the lines of the "preponderance of the evidence" level.

[KDM]

Ok good info i will research the 3.156©(3)