"Help" with getting a Earlier Effective Date

[recdir]

Here's my situation, I was recently rated 30% for tension and contraction headaches "effective date" December 2013, however I was already rated 0% August 2002 so here's my question, should I NOD for the 2002 as my Earlier Effective Date or is the 2013 correct?

[broncovet]

The effective date can not be determined on what you posted.  

You can look these things up, and then decide:

1.  What is your claim date, that is, when did you apply?

2.  Did your C and P examiner (or other medical evidence) provide a date your headaches began?  What was the C and P exam date?  What date did the doc say your conditions began?  

3.  Did you apply within a year of getting out of the military?

4. It sounds like this is an increase.  What date did you seek the increase?  Did you have a date when its documented your condition "got worse"?  What was that date?  

5.  Did you submit New and material evidence?  When?  

   Your effective date will be the later of the date you applied or the facts found, that is, the date the doc said you were disabled, or, when the increase occurred, but not earlier that a year before you applied for the increase.  

8 U.S. Code § 5110 - Effective dates of awards

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

• US Code
• Notes

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(a)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence resulting from the correction of the military records of the proper service department undersection 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of reopening of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

 

[recdir]

I retired in 2000 at which time the headaches were one of a few claims I applied for and it took the 2 years for it to come back at 0% and throughout my 22 years in the service it was documented in my medical records with these headaches. I have/had continue to fight not only for these headaches increase since I received the 0% in 2000, and the bottom line is it took nearly 15 years for the VA to settle these headaches

[recdir]

Oh yea "broncovet" Thanks for the Information

[broncovet]

Let me make sure I have it correct:

1.  You appled and got 0 percent in 2000.  

2.  You did not appeal this decision (apparently) but applied for an increase, and eventually got the increase.  "Ouch".  You made it harder to get an EED by not appealing within a year.  However, not all is lost!  

Now, the big question is when did you file for an increase, and when did the doctor say your condition got worse?   Did you submit new evidence and when?

It may well be to your advantage to take your file to an experienced Vets attorney, along with cfile, and ask him if he thinks he can get an EED.  

You can still file for it yourself, but you should appeal the effective date of the 30 percent within one year of the decision. 

[recdir]

Yes I NOD/appealed the 0% in 2000 and throughout that time (2000 - 2015) when everything was decided I was under doctor care for the headaches from medications, Xrays  to MRI and I constantly sent in each and every piece of documentation dealing with the headaches. It wasn't until I got the information (here on Hadit) to contact "former" Undersecretary Allison Hickey and believe it or not it took here less than (5) days for my claim to be settle.

 

So basically I fought this for nearly 15 years, and it may have took so long because I did all of this on my own, because its VERY hard to get help from the VSO here in Mississippi at least in my area  

[Buck52]

Good Information from broncovet buddy

 

....................Buck