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Date Entitlement Arose

Question

I am seeing a pattern in some BVA decisions that concerns me. When claimants file for earlier effective dates - the BVA is stating that the veteran has already received a benefit greater than he should have been afforded because he received benefits back to the date of the re-opened claim, rather than the date of the VA exam or the date the VA received evidence that supported granting service connection for the condition.

Somehow, they seem to interpret the date entitlement arose as the date of the exam, or the date they received the evidence.

This is an interesting court case that shows that the date entitlement arose is not based on the date of the exam or the date the evidence is received. The date entitlement arose should be based on the date the evidence shows the veteran was disabled, regardless of when the VA exam was, and regardless of when the VA received the evidence that supported the claim.

http://search.uscourts.cavc.gov/isysquery/60f5ec1a-28de-42f4-81f5-84ee1cf4cf1d/5/doc/

"However, in an original claim for benefits, the date the evidence is submitted or received is irrelevant when considering the effective date of an award. As noted above, the effective date of an award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. 5110(a). Thus, when an original claim for benefits is pending, as the Board found here, the date on which the evidence is submitted is irrelevant even if it was submitted over twenty years after the time period in question. In this case, the Board found that the appellant had an unadjudicated claim for compensation pending since January 1972. This does not prevent the appellant from using this evidence, whatever date it may be submitted, to support his claim for an earlier effective date in his original claim for compensation."

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I had t move your post to find it:

  • mow59
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"hello,  I'm a good example of this and haven't received an answer to yet...   long story short...

car accident in active service,1998,  all symptom's and complaints documented in ADMR

cp exam in 2000.   ear disease had tinnitus, hearing loss and vertigo. Vertigo attributed to TBI.  just 10% for vertigo.

dizzy for 20 years, tested periodically and nothing found but chronic dizziness noted.

.2017 diagnosed , finally,, with super canal dehiscence syndrome. 20 years of symptom's explained.

2017 filed a claim for superior canal dehiscence, the labeled it as peripheral vestibular disorder on the claim.

Feb 2,2018 Surgury repaired dehiscence,(hole)  lots of residual symptom's. . All noted on a CP exam in July 2018.

Would like retro pay to the time of the accident or retirement, when medicial evidence showed the symtoms,   but have been told that the reg  statement:  when entitlement arose or claim filed,  which ever is later will do me in for retro pay.. I'm waiting now on the claim to see what happens.."

 

If "Vertigo attributed to TBI.  just 10% for vertigo."

is the same thing medically as 

"the labeled it as peripheral vestibular disorder on the claim."

ad they give you a higher ratinf then 10% with the new claim, maybe you could file CUE on the older claim.....a big maybe---but nothing is impossible.

"Feb 2,2018 Surgury repaired dehiscence,(hole)  lots of residual symptom's. . All noted on a CP exam in July"

How long did you have this "hole" by medical evidence?

Do you have a copy of all of your VA medical records?

What residuals did the surgery leave?

 

 

 

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I had an issue similar to this - currently in 'notice of disagreement' phase. 
I filed in 2009, after several denials and remands, the Board granted service connection. The regional office rated me as zero up until last year saying basically that's when there was a C&P they liked to show frequency/severity of symptoms. My records are full of unofficial non-DBQ lists of frequency and severity, as well as some C&Ps - but no C&P that specifically addressed what they wanted to look at till last year, so no retro. 

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On ‎8‎/‎21‎/‎2018 at 9:02 AM, Berta said:

I had t move your post to find it:

  • mow59
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"hello,  I'm a good example of this and haven't received an answer to yet...   long story short...

car accident in active service,1998,  all symptom's and complaints documented in ADMR

cp exam in 2000.   ear disease had tinnitus, hearing loss and vertigo. Vertigo attributed to TBI.  just 10% for vertigo.

dizzy for 20 years, tested periodically and nothing found but chronic dizziness noted.

.2017 diagnosed , finally,, with super canal dehiscence syndrome. 20 years of symptom's explained.

2017 filed a claim for superior canal dehiscence, the labeled it as peripheral vestibular disorder on the claim.

Feb 2,2018 Surgury repaired dehiscence,(hole)  lots of residual symptom's. . All noted on a CP exam in July 2018.

Would like retro pay to the time of the accident or retirement, when medicial evidence showed the symtoms,   but have been told that the reg  statement:  when entitlement arose or claim filed,  which ever is later will do me in for retro pay.. I'm waiting now on the claim to see what happens.."

 

If "Vertigo attributed to TBI.  just 10% for vertigo."

is the same thing medically as 

"the labeled it as peripheral vestibular disorder on the claim."

ad they give you a higher ratinf then 10% with the new claim, maybe you could file CUE on the older claim.....a big maybe---but nothing is impossible.

"Feb 2,2018 Surgury repaired dehiscence,(hole)  lots of residual symptom's. . All noted on a CP exam in July"

How long did you have this "hole" by medical evidence?

Do you have a copy of all of your VA medical records?

What residuals did the surgery leave?

 

 

 

hello,  I misquoted myself,,  the vertigo was attributed to TBI,,10 percent ,, but was objectively seen at CP in 2000. hole was found in 2017. never ck for before correctly. And the syndrome was only discovered in 1999, so no one knew about it and that the hole would cause such symtoms. .. All VA records are put on new claim.  Lots of residuals ,, balance vision, nystagmus, fatigue, hearing loss, more  tinnitus,,rated for that already....   still healing from surgury.. CP exam was written up very well for me from what I've been told..  so waiting now for claim to finish and see where I stand

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On ‎9‎/‎12‎/‎2018 at 4:00 AM, imokyourok said:

I had an issue similar to this - currently in 'notice of disagreement' phase. 
I filed in 2009, after several denials and remands, the Board granted service connection. The regional office rated me as zero up until last year saying basically that's when there was a C&P they liked to show frequency/severity of symptoms. My records are full of unofficial non-DBQ lists of frequency and severity, as well as some C&Ps - but no C&P that specifically addressed what they wanted to look at till last year, so no retro. 

   got my curiosity going,  I had symptoms of the syndrome noted in my CP back in 2000  ,, wonder how they are going to look at it.  wasn't diagnosed till 2017...    patience and see what happens,, claim is still in.. Read the reg says to file a NOD for earlyier date after the SC is approved.. so waiting for that point... funny thing for me the syndrome wasn't discovered until 1998 and wasn't even know about,,,  wondering if that has any weight in the decision..  something about evidence available at the time,,   lol,,,, was there   but cant proof something that wasn't know about.. patience on my part now..

 

 

Edited by mow59
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On ‎8‎/‎21‎/‎2018 at 9:02 AM, Berta said:

I had t move your post to find it:

  • mow59
  • New User Review
  •  0
  • 1 post

"hello,  I'm a good example of this and haven't received an answer to yet...   long story short...

car accident in active service,1998,  all symptom's and complaints documented in ADMR

cp exam in 2000.   ear disease had tinnitus, hearing loss and vertigo. Vertigo attributed to TBI.  just 10% for vertigo.

dizzy for 20 years, tested periodically and nothing found but chronic dizziness noted.

.2017 diagnosed , finally,, with super canal dehiscence syndrome. 20 years of symptom's explained.

2017 filed a claim for superior canal dehiscence, the labeled it as peripheral vestibular disorder on the claim.

Feb 2,2018 Surgury repaired dehiscence,(hole)  lots of residual symptom's. . All noted on a CP exam in July 2018.

Would like retro pay to the time of the accident or retirement, when medicial evidence showed the symtoms,   but have been told that the reg  statement:  when entitlement arose or claim filed,  which ever is later will do me in for retro pay.. I'm waiting now on the claim to see what happens.."

 

If "Vertigo attributed to TBI.  just 10% for vertigo."

is the same thing medically as 

"the labeled it as peripheral vestibular disorder on the claim."

ad they give you a higher ratinf then 10% with the new claim, maybe you could file CUE on the older claim.....a big maybe---but nothing is impossible.

"Feb 2,2018 Surgury repaired dehiscence,(hole)  lots of residual symptom's. . All noted on a CP exam in July"

How long did you have this "hole" by medical evidence?

Do you have a copy of all of your VA medical records?

What residuals did the surgery leave?

 

 

On ‎8‎/‎21‎/‎2018 at 9:02 AM, Berta said:

sorry for the late reply,,,, had hole since 2017,   yes have all va records,,,,,residuals,, vertigo, reading balance, fatigue,, went to cp exam,, gave me a mental health exam,, mild depression, was diagnosed back in 2000 for that but not rated.

    cp exam she opinioned that everything was proximately due to the TBI  then the SCD,, than the vertigo as a symtome to the SCD... used the good verbiage ,,as least likely then not..  I so far think reading the medicial words that it is gonna be a direct service connect by aggravation while in service..

    If so that's what I'm wondering , does the earliest medicial evidence  that is in records ,, constitute a retro pay on the claim,,,no hopes up ,, but very curious because I read one day and its yes.. then the next day and  its no..  thank you

 

 

 

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