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Few Questions about Remands and Appeals


JFizzle

Question

Good day to you all,

I have a few questions concerning the appeal process as it concerns the decision, BVA, RO, and claim date that hopefully you all can chime in to help clarify.

1. When the BVA letter indicates a "complete grant" for sought benefits, does that mean award the maximum rating allowed? or just award and process?

2. Story Line - In my case, the BVA stated in my letter a few remands (for nasal related issues) and a "complete grant" for sleep apnea (Received the letter 5 days ago). The letter indicated my claim was through a credible lay statement (which described my condition while in service), DBQ from the sleep specialist (who indicated my symptoms started while in service from a nasal injury), and a sleep apnea study performed by VA post service in 2009. The letter indicated consistency of my condition. My claim for sleep apnea was entered in 2013.

My question is in regards to the effective date.

2a. What is meant by the date entitlement arose?

The va.gov website states "an effective date for service-connection for a disability that is directly linked to an injury or disease that was incurred or aggravated by military service is the date VA receives a claim or the date entitlement arose, whichever is later"..

2b. What is meant by whichever is later?

For instance, if these two dates (2/4/2016 for the date Va receives the claim and 1/5/2014 for the date entitlement arose) are in question, which is meant by later... the 2016 date or the 2014 date?

3. If the lay is credible and is indicating the time the condition was first noticed, and the medical evidence through the years also backs up my claim as credible without being a secondary condition, is it possible for the entitlement date to be initialized by back to my date of separation? or would it be the date of the 2009 exam? or would it be when the claim was entered in 2013.

4. Do remands put you in a bad situation or is it for our advantage?

As of now I am in Preparation for Decision for the granted condition and the remanded appeals are currently in the works which date back to 2008. I am just trying to get an idea of what to expect prior to a decision. Thank you for your responses in advance.

 

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For questions 1 and 2 I haven't had the "privilege" yet of getting to the BVA stage of the game.  I am still hoping to get things cleared up at the lower level (not holding my breath though).

Forgive me if I get this wrong, I am still quite new to all of this myself.

Effective date is the date that they determine that you became eligible for compensation.  As far as to "when it arose" I like to think of it like this;  I noticed said condition x years ago. That is when it "arose", now you make a claim for said condition, the date they receive the claim for your condition would be your effective date. 

Since the date you made your claim is the only solid date they can really go by as to when they knew the condition truly existed, this is usually the "later date".

With question 3, if you are referring to lay evidence, the only answer I can give is "it depends".  It depends on the nature of the lay evidence and how it is presented.  I have read many cases where the BVA decision pivoted on the lay evidence.  Something like breaking an arm while in service while on a combat patrol, you get treated but something happened to the medical records and they didn't get put in your permanent medical records, lay evidence can be useful in establishing the nexus.  On the other hand, lay evidence cannot help establish some complicated neurological condition, except perhaps that everyone notices muscle spasms frequently. 

My thoughts on it are that lay evidence supports your claim but should not be the basis of it.

Number 4, remands, it all depends.  Luck of the draw, get lucky the VA schedules the items that got remanded and you fly through the process and you get what you think is a fair and just rating.  Otherwise, like you will probably read a lot of in any forum you visit (here or another site), that you get put in the queue to wait your turn. 

This is where you start learning to be your own advocate and research what you can from here and other locations on what your conditions are and how they are supposed to be rated.

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