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Date Entitlement Arose
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free_spirit_etc
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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