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Date Entitlement Arose

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free_spirit_etc

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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In the case I linked to the diagnosis came much later:

"In May 1994, the appellant submitted a letter from Dr. Henson. In his letter, Dr. Henson stated that the appellant currently suffered from PTSD. Dr. Henson opined that in 1972, when the appellant had been diagnosed with schizophrenia, the appellant was "using large amounts of alcohol, which in conjunction with [his] PTSD, could have presented with similar symptoms. This may explain why you were given a diagnosis at the time of schizophrenia." That same month, the appellant also submitted a letter from Dr. Robert H. Keiter. Dr. Keiter stated that he had been treating the appellant since January 1994. Dr. Keiter stated, "You related to me that you were diagnosed in the past with schizophrenia. In my experience with you, at no time have you demonstrated symptoms indicative of the diagnosis of schizophrenia." In August 1994, the appellant submitted another letter from Dr. Bennett. Dr. Bennett concluded that the appellant had been suffering demonstrable and overt symptoms of PTSD since May 1975 when he began treating the appellant."

"The Board found that the appellant had a pending and unadjudicated claim for a nervous condition which would include a claim for PTSD since January 1972. Nonetheless, the Board determined that the VARO did not receive evidence which established that the appellant's nervous disorder was related to his military service until 1992, when he filed his claim for compensation for PTSD. The Board, therefore, found that the appellant was not entitled to an earlier effective date."

The Court said it did not mater when he got the diagnosis, or when the VA received the evidence. What was important was whether the evidence showed he had the condition at an earlier date (since he had a pending claim).

Edited by free_spirit_etc
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Yes, it makes a big difference.

Jbasser made a good point. This regulation is dependent on many circumstances.

For example, if a vet has a TDIU claim and SSA has found the veteran to be unemployable solely due to the same SC the TDIU claim is for, then the VA will render a EED up to an additional year , for TDIU EED and retro, but only

If the SSA EED preceded the VA TDIU form date,

then a veteran might successfully attain more retro back to the SSA date (if one year prior to the TDIU date) :wink: gee that sounds convoluted....

I have used my husband's case as example here before.

He filed for TDIU Fall 1992. Applied for SSDI in 1992.

SSDI awarded with Nov 1991 EED.(PTSD)

The VA properly determined his 'TDIU' EED as Nov 1,1991. (The award was not for TDIU but for 100% P & T because they cant award TDIU to a dead person.)

This was an accrued benefit award for his PTSD claim that was pending when he died.

VA awarded me only 2 years of his accrued in those days. That regulation has changed since to awards of all accrued.

Here is another EED scenario:

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Yes. I know there is a lot in the regulations. But I thought this case was interesting, and might be useful to someone because it covers retrospective evidence..

And it was decided by a panel of judges.

No. 99-132


Stephen T. McGrath, Appellant,


v.


Hershel W. Gober,

Acting Secretary of Veterans Affairs, Appellee.



On Appeal from the Board of Veterans' Appeals



(Decided August 16, 2000 )

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I see Carlie had a great post on this issue as far as increased rating claims are concerned here:

And it also points out that the BVA often misinterprets the date:

"According to paragraphs 6, 7, and 10 of your opinion request, when a veteran submits a claim for increased rating and a subsequent VA examination substantiates the increased disability, the Veterans Benefits Administration (VBA) awards increased compensation effective the date of the claim; however, paragraph 10 of your opinion request states that some members of the Board of Veterans’ Appeals (BVA) believe, based upon Harper, that the appropriate effective date in such a case is the date of receipt of the VA examination. The Supreme Court has instructed that, “[t]he starting point in interpreting a statute is its language.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). "

Edited by free_spirit_etc
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