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recdir

Earlier Effective Date

Question

How far back or how many years back will the VA go to for a Earlier Effective Date?

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There are only two ways to establish an earlier effective date after a decision has become final:  (1) by establishing a "Clear and Unmistakable Error" was made or (2) by submitting official service department records that existed, but were not considered, in a decision.  See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403.  As discussed elsewhere in this Knowledge Book, CUE is a "very specific and rare kind of error" that has special pleading requirements.  Section 3.156(c), however, is fairly straightforward.  If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision.  If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back.  38 C.F.R. § 3.156(c)(3).  

 

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Usually until the appeal period time is run out...other wise you would basically need a CUE  or find an error the VA committed to continue  for the EED.

jmo

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

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The Effective Date is a strange animal because it really depends on the evidence of record, the evidence that VA had in their possession at or before the rating decision and how far are you willing to fight VA.

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Right and also understanding the VA's concept of "Date Entitlement Arose."

That concept is searchable here at hadit.

I have seen some extraordinary EEDs awarded by BVA that go back many decades.

Some of those cases are posted here in the CUE forum which also includes I believe some 38 CFR 3.156 winners.

Example: My husband applied for higher rating of his PTSD (1992, 1993) forget when.

He also applied for SSDI within one year after filing that claim and was awarded SSDI solely for PTSD within a few months.

After he died, I had to start from day one (in those days) as his survivor and he told me to make sure I continued his 2 claims if he died...I mean he said if they kill him...he meant his 1151 claim pending as well.

I already discussed the 1151/FTCA here many times. They did kill him.

The "Date Entitlement Arose "for him was Nov 1, 1991,per SSDI based solely on his VA medical and psychiatric records.

When VA finally adjudicated the PTSD claim properly ( lots of BS went on first) 3 years later, their posthumous award used not the date he filed this this

claim but the 1991 favorable EED due to the SSDI award  for 100% P & T  PTSD.

I am simplifying this without the regs they used but they are here available under a search for Date Entitlement Arose.

 

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      meaning the VA might have considered your claim in 95/96 as "not well grounded" and failed to even get your STRs.Or they did get your STRs but never considered the specific entry you cited here.

      Lots of discussion under a search, of 38 CFR. 3.156 (a)(b) (c) ---here is a winner:

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