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Berta
I didn't know where to put this....these issues come up often as to EEDs.
Better EEDS-38 CFR 3.156© and CUE:
Every vet who was denied SC for anything that they finally award SC for should go over their older denial carefully
Chris Attig has an excellent article on 38 CFR 3.156 ©, in part the regulations state:
If those records lead to a grant of service-connection for a previously denied claim (even if finally adjudicated), then 38 CFR 3.156(c)(2) contains the following requirement:
“An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim;”
https://www.veteranslawblog.org/2-times-that-veterans-should-argue-for-an-earlier-effective-date/
We have discussed this regulation many times here but it bears repeating.
Of Course a CUE can garner a better EED as well…as long as the denied claim , for the same SC, was at a ratable level when they denied it.
A Re opened claim - 38 CFR 3.156 (a) is far different as to the EED.
38 CFR 3.156(b) is pretty obvious as most of us do send in more evidence prior to expiration of the appeal date.
This is a long but good read of how the re opened claim did not garner this vet a better EED.
In Part:
“He stated that he had originally
applied for service connection for a neck disorder in
January 1996, and therefore the effective date for service
connection should be February 1, 1996. In a January 2008
rating decision, the RO denied the Veteran's claim for an
earlier effective date. The RO explained that as the RO's
original May 1996 denial of service connection was final, the
law did not provide for an earlier effective date than May
15, 2001 (the date the Veteran filed his petition to re-open
his claim).”
VA was correct.
The veteran then claimed CUE on the 1996 decision but that CUE had not been adjudicated yet at the RO level so they claim was remanded.
https://www.va.gov/vetapp10/files1/1009109.txt
Here is the whole 9 yards on the three facets of 38 CFR 3.156
https://www.law.cornell.edu/cfr/text/38/3.156
Successful better EEDS due to proving CUE in a past decision are also explained her in the CUE forum.
The regulations above make sense.
You must give the VA New and Material evidence under 38 CFR 3.156(a) to re- open a claim.
Your EED will be the date of the Re opened claim.
There are a few unusual exceptions to this regulations - very unusual – my DMII AO claim was one of those exceptions. I filed claim to re open DIC claim in 2003 ,( had a 1151 DIC award), VA refused to re open,then after a battle they re- opened the claim and my EED was 1994.(DIC claim)
I already rattled off how that occurred here, and have never seen a similar re open case like it.
This regulations and also CUE ( 38 USC 5109A) are like the Watergate question…..
“What did the President know and when did he know it”. Same thing…what did VA know and when did they know it.
If a Re open awarded a claim that was denied in the past and was at a ratable level at that time (or should have been –if a Nehmer III issue- Footnote One)
then a CUE claim ,following the exact CUE criteria here, can bring a far better EED to the claimant, when filed on the older denied decision.
CUEs are not really “ claims,” they are frontal attacks on a past decision.That is why they do not fall under VCAA provisions. Lindsay V. Principi.
This EED subject comes up here often and it is worth while to read the 3 specific parts of the 3.156 regulations carefully to see how they might apply to any EED question you have.
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Berta
Thanks Tbird. Chris Attig has excellent info at his site! We all need to check out his info! I hope the VSOs and vet reps out there read it as well.
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