Can I Appeal The Effective Date?

[TiredCoastie]

Hello everyone!

I'm in the process of digesting my latest claim decision and am drafting a NOD to address a denial of cerebral thrombosis/TIAs and a lowball of the migraine increase (from SC & 0% to 30%). Can I appeal the effective date? There's a statement regarding the effective date on my migraine increase which says:

The effective date of this grant is XXXXXX. Entitlement to an increased evaluation has been established from the date of the medical evidence showing an increase in disability (Headaches DBQ completed by Dr. XYZ). When private medical evidence showing an increase in disability is received within one year of the date of the evidence, the effective date of the increase is the date of the evidence.

So, in other words, the date my neurologist signed the latest DBQ is the effective date of the grant of increase.

The problem is that I had filed for an increase about a nine months before the effective date of the grant, but was denied. In response and at the recommendation of my VSO at the time, I submitted a "request for reconsideration" claim. The NSO felt that I'd gotten a bad rater when I first requested the increase and running it through the system again had some probablity of success quicker than filing an appeal. In fact, the rater somehow missed that I had an informal claim in the system a month previous to when he or she assigned the date of that claim. Meanwhile, the NSO sent me back out to my doctors to get fresh DBQs as "new and material evidence." The signature date on the new DBQ is the date of the grant.

Looking at the situation with the arthritis in my knee, which was another contention of the latest claim along with the items I asked to have "reconsidered," I'm benefiting because the date that doctor signed the DBQ is a little earlier than the date of the latest claim. But I had made no previous request for an increase for this contention. The effective date for the grant of the increase uses the same wording and rationale as the migraine increase.

Do I have an argument here for an earlier effective date on the migraines?

Edited June 3, 2014 by TiredCoastie

[john999]

I would ask for an EED. I did it on a TDIU claim and got an extra six months. The VA had evidence I was unemployable even before I filed for TDIU. Often when a claim is on appeal the effective date should be the date of the original claim. The VA screws vets out of retro by setting the effective date as the date they got a VA C&P exam. This is BS.

[Berta]

At first glance, I think you should NOD the EED or ask them to CUE themselves.

."When private medical evidence showing an increase in disability is received within one year of the date of the evidence, the effective date of the increase is the date of the evidence."

This is why the VA, in my accrued claim, awarded posthumously, 100% P & T for PTSD, because the SSA evidence ( a prtivate entity gave him a date more favorable than his TDIU filing date..

But was that a direct verbatim quote from your decision? Did the VA cite any regulation for that? It looked to me that they were manipulating the regulations.

I live at high elevation and a storm is causing me PC satelittle problems......will have to get back to this later.....

In my husband's case (and I posted a VA reg here that reads diffetrently than what you posted the VA stated,

the VA stalled so long on getting his SSA records that he died before the VA got them...

In his case I interpreted the regulation to be thus:

"When private medical evidence showing an increase in disability is received within one year of the date of the evidence," they deliberately stalled on that year deadline in my case, in my opinion, the effective date of the increase is the date of the.first medical evidence of the increase,.

My accrued award bears that out....Iwill try to find the reg later for you.

Vet died 1994. TDIU filed 1992. SSA award for 1151 stroke -EED Aug 1992, then,upon reconsideration I filed with SSA,

Stroke award rendered moot and new SSA for SSDI solely for PTSD with EED of Nov 1991.

I based my reconsiideration evidence for his PTSD solely on VA med recs. So did the SSA.

I called a SSA lawyer up to tell him, since he refused to support my husband with this request, that he had just lost 4500 ( the SSA new retro was 18 thousand) and we had a long but very productive talk about PTSD.

I am anxious to know if VA cited some regulations for that statement as to the EED.

[Berta]

Here is one of my older posts on the EED issue...the key word is "arose"

Here is one my my posts on this issue:





Posted 11 June 2010 - 08:54 AM
The recent reply I just made here to someone brings up this interesting way a favorable EED prior to date of claim could possibly be awarded.

We don't talk enough about the date the entitlement to a disability award "arose"

This case is a good read of how this works.

http://www4.va.gov/v...es1/1007467.txt

This is the key part of this case regarding this concept:

“Once service connection has been established or denied on the
basis that the claimed disability was noncompensable in
degree, receipt of specified types of medical evidence,
including VA examination reports, will be accepted as an
informal claim for increased benefits, or an application to
reopen. 38 C.F.R. § 3.157 (2009); see MacPhee v. Nicholson,
459 F.3d 1323, 1326 (Fed. Cir. 2006). For example, the date
of outpatient or hospital examination or date of admission to
a VA hospital will be accepted as the date of receipt of such
a claim. 38 C.F.R. § 3.157(B) (2009).”

It didnt work for the vet in this BVA decision but could certainly work for a better EED in some cases.I dont have time to find a BVA award as example but am sure they exist.

This case:
http://www4.va.gov/v...es2/0913734.txt
is a good example of how another type of favorable EED can be obtained up to one year prior to filing the claim when using the date that “entitlement arose”

Extraschedular TDIU etc-more favorable EED --- complex and lots of good info for the legal beagles in this case.

[TiredCoastie]

Dug around and found 38 CFR 3.156(b) regarding new and material evidence --

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

I was easily within the 1 year deadline for the introduction of new and material evidence, which should then automatically connect back to the denied claim...especially since I was asking to have that claim reconsidered.

My brain's somewhat hazy - do I have this right?

[TiredCoastie]

At first glance, I think you should NOD the EED or ask them to CUE themselves.

."When private medical evidence showing an increase in disability is received within one year of the date of the evidence, the effective date of the increase is the date of the evidence."

This is why the VA, in my accrued claim, awarded posthumously, 100% P & T for PTSD, because the SSA evidence ( a prtivate entity gave him a date more favorable than his TDIU filing date..

But was that a direct verbatim quote from your decision? Did the VA cite any regulation for that? It looked to me that they were manipulating the regulations.

I am anxious to know if VA cited some regulations for that statement as to the EED.

Thanks John and Berta. I knew I could count on you for widsom on this!

To answer your questions, Berta, that is a direct quotation, and no, there was no regulation cited. The lack of a regulation cite was one of the first clues that there could be a problem since the decision rationale is peppered with them.

I posted my follow on kind of blindly after you both had responded, as I got distracted by my beautiful wife while typing and posting. Looking at my case, my file was very quickly transferred back and forth between ROs - probably electronically thanks to the new technologies in place - and the deciding RO didn't get a good look at the whole file before making a very quick decision, literally within 3 or 4 days of getting my file and claim. So because they didn't take the time to make it right, they must have litereally blown through the decision, slapping it together without noting that the migraine contention was a follow on from a previously denied claim. What was a benefit to me for my knee was not the right decision to my 'noggin. I think 3.156(b) is the right regulation to quote back to the RO in the NOD.

One of the lessons learned for me in this instance is to put everything I expect in writing and make it as simple to understand as possible whenever submitting anything to the RO. I relied on the VSO to pave the way for the "reconsideration claim" that they insisted I should submit and that a better rater would make mostly right. In their defense, they did write a cover memo stating that I was asking for reconsideration of the denied contentions which should have "footstomped" the need for a deeper look into the claim history - something that should have happened anyway. In my defense, that was before I found hadit. I'll be much more explicit in how the regulations should be applied next time I submit a claim...just like any of us would with a NOD.

Edited June 3, 2014 by TiredCoastie

[john999]

What I learned is appeal any decision that has that VA stink on it. I lost thousands of bucks by not doing that in my original claim. The VA must have screwed a million vets out of retro using tricks and BS. When VSO's say don't appeal because the VA might reduce you I say that has not ever been my experience in 40 years.