When you question your EED

[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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited March 10, 2017 by Berta

[john999]

I filed for an EED for a 100% rating back to 1971.  It had to be in the form of a CUE.  My lawyer and I thought we had a slam/dunk since the VA had not considered my IMO/IME in the 1973

rating decision.  I believe this was in 2005 when I filed.   7 years later we were denied at hearing of my claim at the federal court level.  These really old CUE claims for EED's or other corrections of

decisions are tough because you have to use the regulations that were in effect in 1973.  I found that my claim was impossible to prove because the VA was demanding I prove a negative which is

impossible.  Before 1990 the VA did not even have to include IMO's and all evidence in their rating decisions except if it were lost service records that you were bring up that the VA should have considered.

Any claim that affects a large group of vets will be fought like crazy by the RO, BVA and Court of Vet Appeals.  It does not matter about the facts, intent of the law, or justice.  It is all about having to pay

potentially thousands of vets years of retro.  They hate that idea.  There are vets who won landmark decisions who have not been paid due to constant appeals by the VA to stall.