Reopened Claims Must Read For Earlier Effective Dates

[pacmanx1]

Once a claim is reopened, a claimant is "entitled to have his/her claim re-adjudicated on the basis of all the evidence of record, both old and new." Bernard VS. Brown, 4 Vet. App. 384, 390 (1993).

So if VA denies a veterans claim then later the veteran reopens his/her claim and the claim is granted. If the veteran can prove that his or her condition reached a certain percentage by medical evidence, the veteran can get a retro payment for the Earlier Effective date but it boils down to the evidence that was in Va's possession at the time of the original claim.

[63SIERRA]

it not only hinges on evidence that was available and considered at the time the claim was initially filed, but also on the actions the VA took at the time of the claim, if they did not consider all avenues in order to approve the claim such as was a possible existing condition being/been aggravated by either factors caused by service or other service connected injuries or ilnesses.

From my personal perspective, the VA doesnt seem to get very much right. So if you do some research and confer with knowledgeable people you will likely find a way to win.

[63SIERRA]

OK, my CUE was granted with an earlier effective date of May 7 1969...How long does it take for the VARO to get the info back from the BVA.. Then how long does it take for them to get the file reviewed by the VARO and finalize this Claim? I have heard it can take many months or years...Do I need to call general counsel or the director of the VA here in Wichita.. How long do I have to wait for these issues to be done....Is there phone numbers available for the people in this VARO?

RSG

the RO have a policy of dont call us we will call you.. you can send in an IRIS request though.

OK, my CUE was granted with an earlier effective date of May 7 1969...How long does it take for the VARO to get the info back from the BVA.. Then how long does it take for them to get the file reviewed by the VARO and finalize this Claim? I have heard it can take many months or years...Do I need to call general counsel or the director of the VA here in Wichita.. How long do I have to wait for these issues to be done....Is there phone numbers available for the people in this VARO?

RSG

[Guest]

The crazy one here. Yes I know this sound crazy but I love thinking outside the Box. This is how most of us got to the 100% group.

§ 3.156New 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.

(Authority: 38 U.S.C. 501)

©Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records;

and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

"(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim."

In reference to the original post, I am referring to when a veteran actually files a claim and the claim is denied and then the veteran actually file a reopen claim and the reopen claim is granted. The veteran should look at the evidence used listed on the denied rating decision and the evidence used listed on the granted rating decision. VA is famous for not reviewing the entire C-file. Their could be material evidence during the time of the original claim not used and not listed in the rating decision especially evidence like SMRs and VA Medical Treatment Records. If and I say if a veteran can prove that his/her condition existed and became established before the claim was denied in the original claim. Then the veteran should file an Earlier Effective Date for retro payment. If the evidence was in the file what does the veteran really have to lose but time.

Edited April 28, 2015 by pete992

[free_spirit_etc]

Pete992,

Thanks for posting that. That is much more clear than the initial post. The initial post seemed to imply that an earlier effective date is pretty much a given if the evidence was in the file. But there are hoops to jump through and things to prove before you get there. And the VA can be pretty tricky in plugging some of those holes.

[deltaj]

Pete, As you are no doubt aware, a reopened claim is a claim filed after a final disallowance of a claim. Unfortunately, V.A. has a nasty habit of disregarding new and material evidence (38 CFR 3.156) received by V.A. during the appeal period of a denial and then granting benefits from the date of a subsequent document which they label as a reopened claim. I too believe sincerely that a veteran can get an earlier effective date on appeal by using claims documents because I helped my husband file his last CUE claim for an earlier effective date pointing out new and material evidence received during an appeal period.

[WVSERVER]

VA the denied me a few service connections on my initial claim stating that there was no evidence in STR of complaints or treatment of denied conditions, of course I knew this was a load of bull. After receiving the award letter I requested a copy of my C-file and low and behold all the records that proved service connection were there the only problem is by the time I received the C-file I had passed the 12 month mark. I knew I need to file a cue and ask for my case to be reopened but I really did not know what a cur look like nor did I have the energy to research more law I was plum wore out.

So I wrote the VA a long letter explaining the false denial and that the evidence was in there possession at the time of said false denial that proved service connection. I asked that they correct the false denial by service connecting me for denied contentions back to the received date of my initial claim when they made the false denial I also provided the RO with said evidence even though they already had it as it was in my C-file.

After they received my statement and evidence they reopened a new claim for the denied contentions concealing the fact that this was still an initial claim. It took the RO two more years to finish but they did service connect me and pay me back to my original date of four years prior I went from 70 to 90 but they still denied fibromyalgia stating that I only had a diagnoses from the Air Force but needed a clinical diginosis.