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]

Once the claim has been reopened and granted the veteran can simply file a NOD on the Earlier Effective Date. Yes, I agree that the veteran should file the EED under 38 CFR 3.156 or 3.157 or maybe even 3.303. or all of the above regs.

Keep in mind that when VA reopens a claim they pretty much process the claim top sheets or top Volume if the veterans has multiple volumes instead of going through the entire C-File. VA may even fight the veterans claim but evidence wins. Again if the veteran can prove that he/she had a condition that reached a certain ratable percentage then he/she can win their retro.

IMHO instead of filing a CUE claim it would be a lot easier if the veteran would file a NOD for EED on the recent claim rated. I do agree in filing CUE claims but filing a NOD would be a lot easier. I have even told veterans to file both a CUE claim on the old decision and a NOD on the newly rated decision. It still all boils down to what evidence was in VA possession at the time of the original decision. VA was/is famous for omitting material evidence both SMRs and medical treatment records that would help establish service connection.

Pete

Edited April 27, 2015 by pete992

[free_spirit_etc]

I certainly agree that a vet should file for an earlier effective date once the claim has been granted, if the evidence supports that. But if they did not appeal an earlier decision on the claim, the effective date will most likely be the date the veteran informed the VA of their intent to reopen the claim, unless they can show a CUE on the previous decision.

You made a very good point about the VA omitting evidence. If they did not consider the evidence in the initial claim, then you could make a case that the effective date should be based on the evidence that was in the constructive possession of the VA at the time the previous decision was made, but not considered at the time of the previous decision.

Edited April 27, 2015 by free_spirit_etc

[Guest]

I certainly agree that a vet should file for an earlier effective date once the claim has been granted, if the evidence supports that. But if they did not appeal an earlier decision on the claim, the effective date will most likely be the date the veteran informed the VA of their intent to reopen the claim, unless they can show a CUE on the previous decision

Free, a veteran should not have to show proof of intent to reopen a claim if the claim was filed or reopen prior to March 24, 2015. Remember prior to March 24, 2015 a veteran either filed a claim/reopen claim or they did not.

[RUREADY]

RUREADY, since your profile shows you are rated at 100% that means you have had evidence that was used to grant you that 100% service connection. Sorry you feel this is BS but evidence wins claims of all types.

I would not compare getting granted service connected with wining the lottery.

If the veteran can prove that his or her condition reached a certain percentage

I would compare it to lottery and this is why if evidence is already

in your VA file,doctors saying you were unemployable since 2003

EVIDENCE in records VA has this already do you think you can get your

% up how can you prove your conditions were a certain percentage in 2003

by VA if the exam didn't show it then it wont matter now neither. Remands odds

are against you always from CAVC anyway. They can change the laws to work for VA

always they write the rules as they go. Just read veteran law library of cases that has an

Early effective date it ant easy and I have lost hope in the system. jmho

Edited April 28, 2015 by RUREADY

[free_spirit_etc]

Free, a veteran should not have to show proof of intent to reopen a claim if the claim was filed or reopen prior to March 24, 2015. Remember prior to March 24, 2015 a veteran either filed a claim/reopen claim or they did not.

Okay. I was thinking more of an informal request to reopen -- so I guess it would be more of an informal claim, than showing of intent to file. But in order for the informal claim to occur, the claimant would have to show intent to file / reopen.

38 C.F.R. § 3.155©

© When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim.

[RSG]

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