Earlier Effective Date (EED) Evidence Used/Not Used

[pacmanx1]

The crazy one here, once a veteran receives his/her rating decision the veteran should make sure he/she fully read over and understand why the claim was denied.  VA is very famous for not including all medical records both in service records and current treating records.  Example: The veteran files a claim March 2004, the VA set up a C & P exam in December 2004. The VA then request for the veterans medical records from December 2003 to March 2004 but VA don't get around to process the claim until February 2005.  The VA then denies the veteran's claim but the veteran had treatment records from April 2004 to February 2005. The evidence used in making the decision is just as important as the reason and bases of how they (VA) came up with their decision.  If the evidence was not listed in the evidence section then the veteran should file a NOD and make sure VA address that evidence. You can say that VA missed this evidence or  purposely overlooked this evidence but it is evidence that VA must consider when reviewing the veteran's claim.  Please chime in

[Guest]

Justrluk, I am not familiar with your situation but IMHO, if VA grants your claim only back to your C & P exam and you have a diagnosis prior to that time frame. I say go ahead and file a NOD.  Filing a request for reconsideration at the RO level is like asking VA to reopen your claim.  Yes, I know it really does suck but this is the game we have to play.  Make sure you wait until you get your Official Letter (BBE) before filing a NOD

Edited December 29, 2015 by pete992

[Buck52]

I agree with pete992, the EED should date back to when you first filed for the claim  or an intent to file claim.

 unless its for increase? a new claim yes but not for increase or reconsideration...the EED will probably be the date filed for it.

 

I sent in an intent to file claim before I started my''new claim'' they recived it Qct 1st 2015  and the claims  intake center sent me a letter letting me know that will be my EED...So I'm keeping that letter in a very safe place and made serveral copies.

However my diagnose was before I filed  the intent to file claim...so maybe If they screw me around I could say it should be the date I was diagnosed correct?

live and learn  because the VA sure ain't going to tell ya!!!

 

I agree with ya pete992 VA is supposed to look at all the evidence before they make a decision. not looking at or reading the evidence usually is a denied claim but can be corrected with NOD and SOC. and the veteran can claim EED back to when he first filed.....as his/her EED. Blog -

 

:Matthew Hill You are here:Home/General

 General /by Matthew Hill, Earlier effective dates I have received a lot of questions about effective dates recently. You can read our prior post about this here. But with the addition of the new Agent Orange/Nehmer cases and the change in law with PTSD stressors I thought that I would offer an update on this area.

 

When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to service. The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award.

This is the date from which the VA determines the veteran should receive compensation. In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence. This is true when the veteran is contesting a determination on service connection or the rating (in fact, in a rating case, the veteran does not even have to present new evidence, but just claim that the disability is worse).

But this concept of reopening a claim is not true when it comes to effective dates. The only time to contest the effective date of an award is within the appeal period of the decision. So if the Board of Veterans Appeals’ issues a decision and gives an effective date, then the veteran has only 120 days to appeal that decision.

If the regional office (RO) issues a decision on the effective date, the appeal period can range from 60 days – if it was a Statement of the Case – or longer – if it was a rating decision. No matter where the decision is issued, it is critical that the veteran quickly determines if the effective date is correct; once the appeal period ends, it becomes very difficult to contest the effective date.

The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim). This is an extremely difficult burden and veterans rarely win these cases.

The law on effective date is that it is typically the date that the veteran filed the current claim. There are many exceptions that allow a veteran to go back further—sometimes decades. But determining whether the effective date is correct cannot be done without a thorough review of the veteran’s Claims file (aka C-file). The C-file has information on any and all claims that a veteran has filed since discharge.

It gives the veteran’s advocate not only a chronology of when claims were filed, but also what evidence was submitted when; stated differently:when the VA knew what.

Two areas that I often find effective date mistakes in are cases regarding Agent Orange and PTSD . Agent Orange cases have their own special rules for effective dates due to the Nehmer litigation. The Nehmer rules call for much more favorable decisions on effective dates,often going back years to when the veteran first applied and not just when the veteran reopened.

The recent new wave of Agent Orange cases related to Ischemic Heart Disease, Parkinson’s and chronic B cell leukemia has led to a flood of decisions that deal with effective date. In these cases, it is vitally important veterans make sure that the VA determined the correct effective date when the award is granted.

In PTSD cases, I find that by the time the veteran comes to me for help, he had applied and been denied multiple times before. This scenario is particularly true for Vietnam veterans. So many of the Vietnam veterans suffered from PTSD for decades before the VA would even admit the existence of the disease. In these cases when the VA finally grants service connection, there are instances in which the VA has to grant benefits all the way back to the original application date if the grant was based on service records newly associated with the veteran’s C file.

So if the veteran had applied for compensation for PTSD and been denied multiple times since 1980, and the VA finally grants the case because of a discovery of a service record ( such as an After Action Report showing the veteran was in combat, or documentation showing that the veteran was given a Bronze Star), then the veteran has an opportunity to collect compensation all the way back to the original claim. In short, it is important to understand that the veteran has one real chance to make the VA get the effective date right, and that is when the award is granted.

If the effective date is not right, a veteran must raise this issue during the appeal period, otherwise the VA’s determination prevails. Share this entry. But with the addition of the new Agent Orange/Nehmer cases and the change in law with PTSD stressors I thought that I would offer an update on this area. When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award. This is the date from which the VA determines the veteran should receive compensation. In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence.

This is true when the veteran is contesting a determination on service connection or the rating (in fact, in a rating case, the veteran does not even have to present new evidence, but just claim that the disability is worse). But this concept of reopening a claim is not true when it comes to effective dates

. The only time to contest the effective date of an award is within the appeal period of the decision. So if the Board of Veterans Appeals’ issues a decision and gives an effective date, then the veteran has only 120 days to appeal that decision.

If the regional office (RO) issues a decision on the effective date, the appeal period can range from 60 days – if it was a Statement of the Case – or longer – if it was a rating decision. No matter where the decision is issued, it is critical that the veteran quickly determines if the effective date is correct; once the appeal period ends, it becomes very difficult to contest the effective date.

The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim). This is an extremely difficult burden and veterans rarely win these cases. The law on effective date is that it is typically the date that the veteran filed the current claim. There are many exceptions that allow a veteran to go back further—sometimes decades. But determining whether the effective date is correct cannot be done without a thorough review of the veteran’s Claims file (aka C-file). The C-file has information on any and all claims that a veteran has filed since discharge. It gives the veteran’s advocate not only a chronology of when claims were filed, but also what evidence was submitted when; stated differently:when the VA knew what. Two areas that I often find effective date mistakes in are cases regarding Agent Orange and PTSD . Agent Orange cases have their own special rules for effective dates due to the Nehmer litigation.

The Nehmer rules call for much more favorable decisions on effective dates,often going back years to when the veteran first applied and not just when the veteran reopened. The recent new wave of Agent Orange cases related to Ischemic Heart Disease, Parkinson’s and chronic B cell leukemia has led to a flood of decisions that deal with effective date. In these cases, it is vitally important veterans make sure that the VA determined the correct effective date when the award is granted.

In PTSD cases, I find that by the time the veteran comes to me for help, he had applied and been denied multiple times before. This scenario is particularly true for Vietnam veterans. So many of the Vietnam veterans suffered from PTSD for decades before the VA would even admit the existence of the disease. In these cases when the VA finally grants service connection, there are instances in which the VA has to grant benefits all the way back to the original application date if the grant was based on service records newly associated with the veteran’s C file. So if the veteran had applied for compensation for PTSD and been denied multiple times since 1980, and the VA finally grants the case because of a discovery of a service record ( such as an After Action Report showing the veteran was in combat, or documentation showing that the veteran was given a Bronze Star), then the veteran has an opportunity to collect compensation all the way back to the original claim. In short, it is important to understand that the veteran has one real chance to make the VA get the effective date right, and that is when the award is granted. If the effective date is not right, a veteran must raise this issue during the appeal period, otherwise the VA’s determination prevails. Share this entry .....

:sorce: Attorney Matthew Hill  =of  Hill & Ponton

 

....Buck

Edited December 29, 2015 by Buck52

[Chuck75]

"If the effective date is not right, a veteran must raise this issue during the appeal period, otherwise the VA’s determination prevails."

Not exactly true. The first thing is to prove that the earlier date was applicable to the original claim. Then, since the VA made an "obvious" mistake,

and that mistake ended up costing the veteran a benefit that he was entitled to, that could constitute CUE. The VA will likely argue against the veteran,

but there is at least an even chance of winning at an appeal level. The BVA does not always get everything right. I've got a claim that I'm still fighting the VA over. Once they correct all the mistakes,

I'm going to have to go back and fight over an earlier effective date. That's gonna be a real battle, since C file records of the original denial seem to have vanished from the C file.

(There is a fair amount of retro involved, even though the monthly amount of comp is small.)

[Guest]

Justrluk said,

Chuck - I think the 'used the C&P date' trick was used on my remand order decision. Do I simply file an NOD when the BBE comes in? Or, do I request reconsideration of the effective date?

Chuck said,

Not exactly true. The first thing is to prove that the earlier date was applicable to the original claim. Then, since the VA made an "obvious" mistake, and that mistake ended up costing the veteran a benefit that he was entitled to, that could constitute CUE.

In Justrluk case since his claim will just be decided, it is best to file a NOD for EED over a CUE for EED.  Keep in mind that the results will be the same but since the decision is not final(more than one year old) the claim is not ripe for a CUE claim.  CUE claims are very hard to win and the burden falls on the veteran plus the veteran lose the benefit of doubt. Remember that in filing A CUE claim the claim must be specific in VA regulations and laws.  By simply filing a notice of disagreement, all a veteran has to prove is that he/she had a diagnosis prior to the date that VA granted their claim.  If VA has already service connected the condition the only thing would be to get the correct effective date to pay the veteran his/her retro payment.

 

Matthew Hill You are here: Home/General

 General /by Matthew Hill, Earlier effective dates I have received a lot of questions about effective dates recently. You can read our prior post about this here. But with the addition of the new Agent Orange/Nehmer cases and the change in law with PTSD stressors I thought that I would offer an update on this area.

 

When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to service. The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award.

This is the date from which the VA determines the veteran should receive compensation. In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence. This is true when the veteran is contesting a determination on service connection or the rating (in fact, in a rating case, the veteran does not even have to present new evidence, but just claim that the disability is worse).

But this concept of reopening a claim is not true when it comes to effective dates. The only time to contest the effective date of an award is within the appeal period of the decision. So if the Board of Veterans Appeals’ issues a decision and gives an effective date, then the veteran has only 120 days to appeal that decision.

If the regional office (RO) issues a decision on the effective date, the appeal period can range from 60 days – if it was a Statement of the Case – or longer – if it was a rating decision. No matter where the decision is issued, it is critical that the veteran quickly determines if the effective date is correct; once the appeal period ends, it becomes very difficult to contest the effective date.

The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim). This is an extremely difficult burden and veterans rarely win these cases.

The law on effective date is that it is typically the date that the veteran filed the current claim. There are many exceptions that allow a veteran to go back further—sometimes decades. But determining whether the effective date is correct cannot be done without a thorough review of the veteran’s Claims file (aka C-file). The C-file has information on any and all claims that a veteran has filed since discharge.

It gives the veteran’s advocate not only a chronology of when claims were filed, but also what evidence was submitted when; stated differently: when the VA knew what.

Two areas that I often find effective date mistakes in are cases regarding Agent Orange and PTSD . Agent Orange cases have their own special rules for effective dates due to the Nehmer litigation. The Nehmer rules call for much more favorable decisions on effective dates, often going back years to when the veteran first applied and not just when the veteran reopened.

The recent new wave of Agent Orange cases related to Ischemic Heart Disease, Parkinson’s and chronic B cell leukemia has led to a flood of decisions that deal with effective date. In these cases, it is vitally important veterans make sure that the VA determined the correct effective date when the award is granted. Yes, the time to attacked/file a NOD is within the appeal time limits.  Since most effective dates comes from a rating decision from the RO, the veteran should have one full year to file his/her NOD.  Even if it is a remand or a BVA grant, the local RO assigns the effective dates. BVA rarely assigns an effective date to a decision. If the decision was made by a DRO then the veteran has that time frame to file his/her NOD. 

In PTSD cases, I find that by the time the veteran comes to me for help, he had applied and been denied multiple times before. This scenario is particularly true for Vietnam veterans. So many of the Vietnam veterans suffered from PTSD for decades before the VA would even admit the existence of the disease. In these cases when the VA finally grants service connection, there are instances in which the VA has to grant benefits all the way back to the original application date if the grant was based on service records newly associated with the veteran’s C file.

So if the veteran had applied for compensation for PTSD and been denied multiple times since 1980, and the VA finally grants the case because of a discovery of a service record ( such as an After Action Report showing the veteran was in combat, or documentation showing that the veteran was given a Bronze Star), then the veteran has an opportunity to collect compensation all the way back to the original claim. In short, it is important to understand that the veteran has one real chance to make the VA get the effective date right, and that is when the award is granted.

If the effective date is not right, a veteran must raise this issue during the appeal period, otherwise the VA’s determination prevails. Share this entry. But with the addition of the new Agent Orange/Nehmer cases and the change in law with PTSD stressors I thought that I would offer an update on this area. When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award. This is the date from which the VA determines the veteran should receive compensation. In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence.

Edited December 29, 2015 by pete992

[Chuck75]

The "new and material evidence" is an area that is of concern. SOC's and SSOC's may not mention specific evidence that is in the file. Thus, it can be impossible to prove that the VA did or did not use specific evidence when they made a decision. The decision may have been a denial, or failure to grant a proper disability level.

[pwrslm]

I would send in an IRIS request that they correct the date first.  if the don't follow through with an answer, you should call peggy and poke her for action on the IRIS.

 

It is a clear and unmistakable error, and if they opt to correct it by themselves, then you don't have to go through the grinder and reopen/appeal the issue.