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Ok, I first want to thank everyone for responding to my first question. I appreciate it. Before I ask my second question I want to be up front. I am an attorney, but VA administrative law is not my area of expertise so I don't know shit about it.
My resent claim is the same claim I made in 1995. I am guessing they are not going to back date any rating to then, but if I appeal that decision, will I be paid the increased rating while I appeal?
Need more information, first all if the claim was filed in 1995 and you are now getting the claim back from being process, then yes you can filed an appeal if it has been lees than an year, since the claim was decided. if more than a year than the claim has to be filed either as an increased or reopen it with new material
well it depends, and all of you more knowledgeable in the arcane arts of VA appeals correct me if i am wrong.
Normally with a claim you have 1 year to appeal a decision via Form 9 BVA or NOD with the DRO. After that year you de facto "accept" the decision of the VA as valid.
However in cases where there is a CUE you can get an much earlier back date. This usually rest upon the fact the VA had the evidence to make a favorable decision and grant you a rating but didnt.
For example i filed for PTSD in 2007 but was denied, i re filed in 2011 and was granted it. I was a greenhorn in those years and in my 07 claim i had NO evidence at all (then again i didnt get a C&P either....)..... anyways.
example 1(what happened): i was asked to submit evidence and i didnt, so there was nothing to rate, i was denied. If i appealed my EED in 2011 they would not have found a CUE present, because there was no evidence to indicate that there was PTSD present at the time, but there was in 2011 when i reopened the PTSD claim.
example 2: If i had been seen by a VA shrink and had been given a DX for PTSD but during my claim process the Rater either ignored or didnt see that exam note in my file i would have a case for CUE (clear and unmistakable error) since the evidence was there and they had access to it, but for some reason didnt use it in my claim.
The evidence HAS TO HAVE BEEN AVAILABLE at the time of the original rating decision to be considered a CUE for an earlier EED date and it has to be evidence that would have resulted in a rating. If you said "i have PTSD" at that time but was denied and 5 years later got diagnosed and the psychologist said "yeah it was present since you got back in 2005" that isnt CUE, because all the rater saw was your claim not the evidence of it.
Also, if you have "continuously prosecuted" your claim since the denial in 95' then you can get it. By that i mean you got denied and have worked your way from DRO to BVA then CAVC back agin and round and round and filed all the appeals and appeals timely and within the windows to appeal you can get an earlier EED date.
I had claimed headaches in 2012 but they deferred my decision and i forgot about it, they did to and never mad a decision. I reopened the claim in 2014 and they SC'd me back to 2012 because it had never been decided then and was in limbo but still "continuously prosecuted"
The effective date is the later of the date you applied, or the facts found (the date the doc said you were disabled). Dont even think of representing your self, or others, without at least reviewing:
1. The Cfile
2. The Veterans benefit manual, there is a whole section on effective dates. I counted 48 pages of information on VBM just on effective dates.
There are special rules for "increased ratings" on effective dates. There are also special circumstances when a visit to the doctor can be considered an increased rating for INCREASE.
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