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.

[stillhere]

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.

Pete,

I spent a good couple of hours searching BVA decisions and CAVC and I have been unable to find where the above statement has held true. On the contrary I have many that do not support it?

Can you point me to a docket # or case where I can read it?

My claim for an earlier effective date is at the BVA now and If I end up having to appeal I could sure use that!

In 1984 I applied for hearing loss and HAD a hearing loss that the VA audiologist said was severe to profound but they did not SC. I did not appeal then but I sent in another claim for hearing loss and they treated it as a reopened claim and gave me 70% but only till 2008.

Stillhere

[Guest]

Still, try to Bing or Google Bernard vs. Brown, 4 vet. app. 384, 389 (1993), There are cases there some denied, some granted but most will be remanded back to the Local RO were the final decision will never be uploaded on line unless a veteran does it.

[Guest]

Still, how did you file your appeal? Did you file a NOD? Did you file a CUE? What regulation did you use?

[stillhere]

I filed Nod then a form 9 asking for an earlier effective date. I did not at the time quote a regulation for them.

The VALJ at my BVA hearing seem to know her stuff and what I was asking the VA to do and why. I basically pointed out and showed her in my records where I had hearing loss noted by doctors before I was released from service. Unfortunately I ignored it for 13 years and did not apply for help from VA till 1984. That is when they denied me but in 2012 they granted it but only back to 2008.

Stillhere

[Guest]

I filed Nod then a form 9 asking for an earlier effective date. I did not at the time quote a regulation for them.

The VALJ at my BVA hearing seem to know her stuff and what I was asking the VA to do and why. I basically pointed out and showed her in my records where I had hearing loss noted by doctors before I was released from service. Unfortunately I ignored it for 13 years and did not apply for help from VA till 1984. That is when they denied me but in 2012 they granted it but only back to 2008.

I maybe off, wrong or just crazy but it sounds like this should fall under 38 CFR 3.156C. VA can not pay back to the day after you discharge but VA should pay retro back to the date that you originally filed.

[1994andcouting.....]

Great thread with lots of information. I filed my NOD for an EED last month after finally getting rated 70% for PTSD w/MDD due to MST. However, I was diagnosed with PTSD due to MST (changed from depression) while my claim was on appeal at the BVA in 2008. I was denied for Depression but no mention of the change in diagnosis anywhere.

Thanks everyone.