What's My Correct Effective Date For 100% Rating

[NavyWife]

What's my correct effective date for 100% rating

Just received rating decision and would like input please! They awarded 1 month retro. Was this correct or should it have been back to 1/12/2014 or even 8/15/2013???

I'll try to give the pertinent background.

8/15/2013--applied for increase

9/15/2014 --date of rating decision, increased from 20 to 80% with effective date of 8/15/2013, date claim was received

1/12/2014--started claim for increase on ebenefits.

From the VA website,

"If you need time to obtain supporting evidence, you can begin the application process within eBenefits, obtain your evidence and then complete your application and VA will recognize the date you started the application as your date of claim as long as you complete it within one year. By submitting all of your supporting evidence with your claim, you save processing time and obtain a quicker decision."

12/11/2014--private doctor completed DBQ ( I believe this qualifies as New and Material Evidence)

12/11/2014--finished, uploaded DBQ and submitted claim on Ebenefits.

Rating decision states, "Rating is effective Dec. 11,2014 ; the date we received your claim with additional medical evidence supporting an increased evaluation."

Does 3.156 (b) apply to this situation? The N&M evidence was submitted 3 months after the decision date, so well within the 1 year appeal period.

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(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.

Or what about

38 CFR 3.400 (q) (1) (i). Says date of claim OR date entitlement arose whichever is later.

increased rating is the date on which the facts establish the increase in disability occurred or the date of the original claim for increase, whichever is later.

Or does it not count, because VA is interpreting that it was not until the date of the DBQ that entitlement arose??? Note: this was NOT a new diagnosis, the DBQ simply clarified the severity of symptoms over the past 12 months. The issue was diagnosed & in the VA medical records over 20 years ago.

Can someone please explain "Date Entitlement Arose".

So what's the correct effective date, in your opinion?

[Navy04]

If this claim was awarded as an Increase, then there will be no retro. If the 100% was awarded by adding new conditions that were granted SC, then the Retro will go back to when the Claim was filed. Sometimes it takes the VA a bit to audit and get the money right. Congrats again

[georgiapapa]

VBM 5.9 (Effective Date for Rating Increases) states the following:

"Once the VA grants a claim for an increased rating, it must determine the date from which payment of the increased rating should begin. The date that governs when the change in benefit should be paid is known as the effective date of the claim. The general rule governing effective dates for claims for rating increases is that benefits are effective from the date that the VA received the claim or the date that entitlement arose (which means the date the disability increased in severity) whichever is later. However under circumstances, a veteran may be awarded an effective date that is earlier than this general rule."

"The effective date for an award of a rating increase may date back one year prior to the date of the claim for an increase if "it is ascertainable that an increase in disability had occurred" within this time frame. The CAVC has stated that, in order to receive an earlier effective date, the veteran must submit evidence that indicates that there has been more than a marginal increase in disability. The veteran must show that the disability has increased to the next disability level within the year preceding the date of the claim. In determining whether a disability has undergone an interview increase within the year preceding the date of the claim, the VA must consider all of the evidence of record."

You may have already reviewed the above but I wanted to send it to you in case it may offer some help.

[marine0816]

Good question.. Wouldn't an appeal guarantee an effective date from original claim? Going any other route would erase retro?? Hadit elders and all-stars please chime in

[Buck52]

I would think it would be from the time you first filed for increase .

HOWEVER if the disability worsen before you filed for the increase it should start on that date the date on your evidence from your Doc that mention your disability has got worse , if you had a C&P or a IMO check them on the dates when the Dr mention your disability got worse > even before you filed for the increase.

They will try to say from the date you filed for increase but you should be able to beat that date

jmo

Buck

[Berta]

How I interpret this is:

"9/15/2014 --date of rating decision, increased from 20 to 80% with effective date of 8/15/2013, date claim was received

1/12/2014--started claim for increase on ebenefits."

The 9/15/2014 decision could have been appealed.

It seems that you started a New claim instead. But I assume for exactly the same disability.

I wonder ,what if you did appeal the Sept decision now......you are still within the appellate period.

As georgiagpapa quoted from the VBM:

"The general rule governing effective dates for claims for rating increases is that benefits are effective from the date that the VA received the claim or the date that entitlement arose (which means the date the disability increased in severity) whichever is later."

You said:

"Or does it not count, because VA is interpreting that it was not until the date of the DBQ that entitlement arose??? Note: this was NOT a new diagnosis, the DBQ simply clarified the severity of symptoms over the past 12 months. The issue was diagnosed & in the VA medical records over 20 years ago."

I would use the DBQ to appeal the older decision..

Awards are appealed just as denials are.

I dont know what others would think here on this idea.

I feel, in essense, your 9/15/2014 award is still within the appellate status....thus could still be appealed.

The DBQ however clarified the "past twelve months." only.....

Do you get SSDI and is so does VA know that (if for the exact same disability)

Did the VA send you a TDIU form or infer TDIU when they awarded the 80%?

This is something I have never seen before......

While in appeal status , a new claim for the same thing has been filed and awarded.........

Or am I getting this all wrong....?

I hope this didn't happen due to some vet rep's advise....

As Buck52 said, check the Evidence list on both decisions.

And read georgiapapa's entire post again.......

Navy04 is right as well

Do you medical records reveal anything warranting not only what the DBQ doc stated but evidence further back than that?

I agree with marine o816:

"Wouldn't an appeal guarantee an effective date from original claim?"

in this way, to file an NOD on the original claim decision. Even though an award has been made since, as long as the evidence warrants a better EED.

You can use the newer award as Evidence,too, for the appeal on the older claim.

But anxious to see how others reply. I have never seen this situation before.

I even wonder if legally VA can award a more recent claim ,when the exact same claim is still in the one year appeal period.????

[broncovet]

Scroll down to the NVLSP link for common effective date errors and see if yours applies.

The "date entitlement arose" means the date the doc said you were disabled. If the doc said you were disabled in Dec.2014, its gonna be hard to over come this. The general rule is the effective date will be the later of the date you applied or the "facts found" (this means the same as date entitlement arose, since the date your doc says you became 100% is the "facts found". The only way to overcome medical evidence is more medical evidence; basically we can not tell the doc he is wrong. Another doctor, however, can, with an IME/IMO. )

The NVLSP link goes over the exceptions to the general rule, above. My recommendation:

1. Read your C and P exam, or other medical reports and note what date the doc said you were completely disabled. Keep that date handy. This is the "facts found".

2. Read the NVLSP link for effective date errors, and see if your situation applies to any of these exceptions to the general rule. As you have stated, CFR 38 3.156 is on the nvlsp's list of common effective date errors , but its not the only one.

Edited February 14, 2015 by broncovet