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?

[deltaj]

I am with Berta on this. We need to know if you filed a notice of disagreement with V.A.'s first rating decision

mentioned in this chronology. Otherwise your earlier claim was not in continuous prosecution. However, decisions do not become final when new and material evidence is received during an appeal period. Otherwise, if you didn't file a notice of disagreement and no new and material evidence was received during the appeal period V.A. may tend to view your earlier

claim as abandoned. There used to be a regulation at 38 CFR 3.400 (q) that new and material evidence received during an

appeal period would permit assignment of rating as though the former rating decision had not been rendered. I suggest

that you get a service officer from a service organization to help you review the records and help determine whether V.A. has made a clear and unmistakable error in the assignment of an effective date. Appeal periods are one year from the date of notification of a decision so you have one year from the date on V.A.'s notification letter to appeal. You only get

one Notice of Disagreement with the decision on all issues such as percentage of rating, effective date, number of

dependents etc. so have someone extremely who knows V.A. law and regulations help you with your appeal.

Edited May 19, 2015 by deltaj

[deltaj]

Eek, I used my three edits to fix typographical errors I made, but missed a glaring error in verb tense. The phrase "is

received" linked a present tense verb with a past tense verb. All that work to attempt to make this post look good and I blew it! Sorry.