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?

[marine0816]

Nice, you gambled by not going the appeal route which granted a faster decision. But in return the VA made you trade in your earlier effective date to grant you that expedited upgraded monthly cash flow. But Now you can still get your retro by still appealing since it has not been a year since last decision. So it looks like you can still win the retro in the end . This might be a 50/50 scenario , and I like your chances.. I would appeal and forget about it, because worrying about this VA appeal would put unnecessary stress on your family since you technically won already by being 100% PT scheduler. Hope you make the best decision for you and your family.

[lotzaspotz]

File an NOD on the effective date. You're still within your one year appeal period. We've had to NOD the effective date a few times simply because it took the RO so long to schedule C&P exams after Board and Court remands. Then, the VA would try to make the effective date the date of the C&P exam even though the claims had been initiated years before. This is not unusual for raters to do, so if you disagree with the effective date, file an NOD. It's possible the rater will fix it at the RO without putting you through a Board appeal.

[Gastone]

NW: Me sees a possible issue. The 09/15/14 Award Letter, was there any mention of an "Inferred IU Claim" due to increase from 20 to 80%? If not, then even though your Schedulary eligible to make an IU claim, your retro is determined by the exact date of you IU claim filing. FMI, was there a compelling reason that you didn't start your application until 12/11/14?

As I see it, had you jumped on the IU filing the day after receiving your 09/14 increase, by starting the IU Claim on your E Ben site, that would have locked in your 09/14 filing date for Retro. Quite a few Vet's make the mistake of waiting until they have all the supporting Documents in hand before starting the VONAP Filing on their E Ben Site. I advise the guys I work with to Start an E-Ben App as soon as they think they have a rateable condition, you have 12 months to complete the app but the Claim Date is locked in for Retro purposes.

The 08/2013 is probably a real stretch but NOD till you Drop, right. I think VA Regs state that any Vet's claim for Comp or Increase is to be viewed as a request for anything and everything that might be ratable. We're just Vets, WTF do we Know. The Raters are the Pros. With that said, the raters can only go by whatever Evidence of Record is available in your C-File. If there was compelling Medical & Financial Evidence indicating that The SC Conditions possibly qualified your husband for IU, an inferred IU Claim should have been listed in the Increase Award Letter. This might be an excellent DRO Personal Hearing Issue. Have you pulled your husbands C-File with a FOIA claim yet?

Semper Fi

Gastone

[Gastone]

NW: Sorry, forgot to ask. You started App On "VA Website" 01/14, was that your E Ben VONAP site? Was the 01/14 or previous dates mentioned in your recent Award in any way?

I was awarded IU 06/14 at a DRO Hearing and in the Award letter the DRO went into great detail as to how the Retro dates were calculated. In my case, I was 70 for about 1 yr before hitting 90 (09/11) and filing for the "Inferred IU" claim within 3 days of receiving "Inferred Notification."

Semper Fi

Gastone

[FormerMember]

Determining an effective date is simple. Even though we are mindless, dumb, two-legged (or less) Veterans, we are essentially pro se- even under the tutelage of VSOs. As such, Moody v. Principi instructs that each and every entitlement, as well as a determinative effective date, must always accrue in a nonadversarial venue in the Veterans' favor. If a Veteran foolishly opens a claim for increase during an active claim, it must be interpreted that the vapid Veteran simply misunderstood the rules of the road. Since the existing claim is open, the RO must correctly interpret that the "new claim for increase" actually was an "informal" NOD because the poor deranged Veteran did evince the requisite "Please, sir. May I have a larger bowl of porridge?" verbiage necessary for a rater to know he/she was unhappy with the initial reopened claim award. This is known as a claim stream. It began when you file initially and remains inviolate until you step on your necktie and fail to file a NOD or substantive appeal sixty days following any SOC during the pendency of the newly reopened claim.

As a perverted analogy, my current claim stream began in 1994 and is still on appeal to the AMC and a Writ to the Court to command the VA or BVA to finish their task. It is unbroken because they left it unfinished in 1995. It is currently unfinished because some of the Joint Motion for Remand was ignored. I filed a NOD with the AMC over their decision within the 12 month issuance of the 1994 effective date just in case they pulled this same stunt. They did. It is still alive and awaiting their response.

Chances are you'll be chasing this up the ladder but the effective date will always be 8/15/ 2013 based entirely on 38 CFR § 3.156 (b). If your misguided request (or a VSO's) for increase within the appeals period was mistaken for a brand new increase claim, that can hardly be your fault. The Presumption of Regularity states that VA raters are competent in all they do, poop ice creme and walk on water. If they misconstrued your NOD for a higher rating than awarded initially for a brand new claim for increase, that implies the Presumption has been rebutted. Ergo what appears irregular is irregular and the Presumption cannot attach (Butler v. Principi).

VA will attempt to argue that your evidence did not establish entitlement until the date of the newer DBQ but that is not entirely correct. When you filed in 2013 for increase, it was a reopening of an existing claim. VA has the power to extend the effective date back to a year before that asked date of increase if the evidence supports it. Nevertheless, it is incumbent upon VA to act promptly when you do ask for an increase, to schedule a C&P at the earliest convenience to make sure the Vet gets what he is entitled to at the very earliest moment the increase is indicated and requested. You are not required to put them on your speed dial and keep requesting the proper rating over and over within an appeal period in the guise of a new reopening for increase each time. Conversely, VA is obligated to view your attempts at remuneration in the most favorable light rather than the most unfavorable to you financially. Congress never intended such an absurd reading of 38 CFR. regardless of what VA tells you.

We and our VSOs are given the Presumption of Stupidity under Comer v. Peake. Unless and until you strap on a real law doggie, anything you send VA requires they give it the most minute inspection to ascertain A) what it is you desire and B) as soon as possible. If a law dog had sent that in for you, it would most certainly be interpreted as a request for an increase because the atty. is a lawyer and expected to know better. Because you did it pro se or via a VSO, it can only be read as a NOD legally. A CAVC judge will rule accordingly. I hope that clears it up. It's all over but the fighting.

Always build yourself a time line. Who did what and when? When did it go astray? Why? What is the controlling regulation/ law? What does/did the evidence consist of and when was it introduced? Once the claim is reopened, the effective date will always be either the date of request or up to a year before. Even if VA sends you out out for a new C&P two months after the filed request, the effective date still has to be when you asked for it. You cannot ask for a C&P. VA must do that. If, during the course of the appeal as here, you introduce even more evidence into the c-file showing yet more disability, VA must rate you further back because they failed to investigate during the course of the claim. You should not have to chase private doctors for IMOs and DBQs to substantiate your contentions. If you do and prevail within the time period of the appeal, the effective date must incorporate their stupidity for failing to perform due diligence themselves. Again, rebut the Presumption of Regularity and the whole charade falls down. All you are left with is the Presumption that the Vet is entitled to the date of reopen as VA cannot rebut it otherwise. Game. Set. Match.

All this hinges on one simple fact.I assume you reopened with some evidence to support an increase in 2013? If so, you're wearing the walk on water shoes.

Edited February 18, 2015 by asknod

[Buck52]

Effective Dates

When VA makes a determination that a compensation award is to be paid based on a claim, an effective date is also assigned. The effective date determines when benefits are payable. Effective dates can vary based on the type of benefit and the circumstances of the claim.

How Effective Dates are Assigned

Listed below are the most common types of claims and generally how effective dates are assigned for each type.

Direct Service-Connection

Generally, an effective date for service-connection for a disability that is directly linked to an injury or disease that was incurred or aggravated by military service is the date VA receives a claim or the date entitlement arose, whichever is later. The date entitlement arose means the date the condition was shown to exist by medical evidence.

There is an exception in cases where the claim is filed within one year of separation from active military service. For these claims, the effective date will be the day following separation.

Presumptive Service-Connection

Generally, an effective date for service-connection for a disability that is presumed to be related to military service is the date entitlement arose if the claim is received by VA within one year of release from active duty. If the claim is received by VA after one year of release from active duty, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later.

Reopened Claims

Normally, the effective date for a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later.

Liberalizing Law Change

If there is a change in law or VA regulation that allows for VA to pay disability compensation, the effective date may be assigned in the following ways:

•If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA regulation, or the request of a claimant is received within 1 year from the date of the new law or regulation, the effective date may be the date of the change in law or regulation.

•If more than one year has elapsed since the change in law or regulation, an effective date of one year prior to either VA's own review or one year prior to the claimant's request for review may be assigned as the effective date.