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.

[Guest]

Actually, I am referring to evidence that a veteran can prove that was in VA's possession prior to the Original decision. Not much with VA is a given, especially Earlier Effective Dates. In a lot of cases a veteran must appeal to BVA and maybe even CAVC but once the claim is reopened and granted. VA must review the entire records for that particular claim/disability.

Once the claim is reopen with the new and material evidence by BVA/CAVC and VA finds evidence that support the original claim that is in the veterans C-File and dated prior to the original denial. VA must re-adjudicate that original decision and grant the Earlier Effective Date.

The catch is having that claim reopened and granted. OK, now that the claim is service connected but when did BVA/CAVC say the disability began. If and I say if the BVA Decision or the CAVC Decision states that the disability had its onset during active military service, then VA can only pay back to the date of the original claim. Now if the veteran filed the claim within one year of his/her discharge then VA must pay all the way back to the day after discharge.

Edited May 27, 2015 by pete992

[RSG]

This is exactly what has happened with my claim.. I was granted 70% by BVA, I was granted 100% by VARO, and this, hopefully, the (last BVA decision) that I have to pursue,granted my claim back to May 7,1969.. With this as an earlier effective date.. It's been just over two months and I have heard nothing from the VARO about this latest decision..Bugs me...But I am trying to be just a little more patient now.. And I did file everything within a month of my discharge...RSG

[Fat]

^{I filed for bilateral knee condition in 2001 and it was denied.}

^{My VSO recommended I do it that way. Big mistake................}

^{I subsequentially refilled in 2009 for left knee condition, but asked for service connection due to "aggravation of preexisting injury".}

^{If the left knee condition is granted, can I file for a earlier effective date back to 2001.}

^{The VA based on SMR's should have judged the initial claim on pre service injury and not judged the claim on injury during service.}

^{All comments welcomed.}

Edited May 28, 2015 by Fat

[add55p]

Pete992

What do you think about this situation? Do you think I have a chance at an EED back pass the final.

1. Denied claim. The original decision denied list the available service treatment records.

2. In response to my Notice of Disagreement (I mentioned the available SMRs) , the VA sent me a Statement of the case, including the available service treatment records in the evidence section, but continued to deny the clai.

3. I failed to file a VA form 9 and that decision became final.

4. Fast Foward: I decided and sent in a request to reopen my claim. This time, I submitted basically, the exact same evidence, but added what I thought and turned out to be, a strong Nexus and DBQ. The Nexus referred to my available service treatment records. Needless to say, VA again denied my claim.

5. I submitted a notice of disagreement and again received a SOC alon with a VA form 9. I immeidiately completed the form 9 appeal and sent it back with a written rebuttal.

6. VA certified my appeal to the Board of Veterans Appeals (BVA) and it was awarded.

7. My claim was reopened and awarded. In the BVA decisionn, the Judge stated: "Although the majority of the service treatment records are unavailable the the board service treatment records dated between 1993 and 1995 has been associated with the claims file." The Judge decision goes on to say "The Board finds that this evidence weighs in favor of the Veterans contention that he sustain a leg condition in service".

While it is understood that I can file for an EED. My question is do you this that I have a strong case?

Thank you..

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[RSG]

I would almost bet that your claim will go back to the BVA and be approved.. But from what I have read, any EED that has been granted by the BVA, means that the whole file will have to be reviewed again by the VARO, if it is granted to you...All I can say is it will not hurt to try to file for your EED.. Just be prepared to fight even more than you have already..RSG

[add55p]

"But from what I have read, any EED that has been granted by the BVA, means that the whole file will have to be reviewed again by the VARO, if it is granted to you..."

RSG

The BVA granted the appeal, but did not state an effective date, however, they did mention that the last final decision was the previous denial. If that makes a big difference...

Could it be that the VARO will determine that.. I am still waiting for the rating..

I appreciate your feedback!

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