Appeals ???

[porgee]

I have a question and I ask for opinions good or bad. Its about one year of retro.

BVA granted me a decision on 2003 effective date of the claim. then the RO Change the effective date

to 2004 cutting 1 year off. I had a year of rehab or bed rest. If I file the claim in 2004 is it possible for them 

to grant the claim back too 2003 because that my SSDI effective date also. I don't want to waste years in appeal for nothing.

Attorneys think I have a chance but I guess its not enough retro for them. Anybody

 

 

[broncovet]

The VARO can not change the BVA decision.   Did the Board decision give an effective date?  

If so, the VARO was in "non compliance" with the Board order.  

However, if you have had attorney's "look" at this, they have seen your file and I have not, so you will have to choose whether to fight this yourself or not.  

 

[Berta]

Porgee can you give us the BVA docket #? And can you scan and  attach the  RO decision?

(Cover C file # and name prior to scanning it)

Was this a TDIU claim?

Was the SSDI award  solely  for what you have SC for now?

And if so , was the VARO aware of the SSDI award and  did you authorize them to obtain to obtain those SSDI records?

If the VA had the SSDI records, that fully support the BVA  retro date and the SSA awarded for the same SC disability, this might be a CUE, and if the RO decision is recent, a CUE might go faster than a long drawn out appeal.

I certainly agree with Broncovet that this appears to be a decision that in not in compliance with the BVA award.

But it is the actual words of the VARO and the BVA that holds the answer to what your next step will be.

 

 

[Berta]

https://community.hadit.com/topic/69945-bva-decision/gsc.tab=0#gsc.tab=0

On June 9,2017 you posted this info here:

“I thank everyone for your response. This is what I think happen to my claim.

My NOD ask for EED of 2003 and the Judge agreed "but they claim I filed the claim

in 2004 and not in 2003. Medical records says I was disable since 2003 with hospital records 

showing I had surgery and I was disable IN 2003. That's why I say I give up. I cant find the record

that I file in 2003 and I file this same claim through SSDI and they tell me SSDI would not file

VA COMP with SSDI for VA benefits. My lost what can I do?”

 

SSA has nothing to do with filing a VA claim.

However VA can award a favorable entitlement date in some cases…

That happened to one of the claims pending when my husband died.

He was at 30% when he filed the claim (1992 I think) but received posthumously 100 % P & T with a 1991 favorable EED, the same date that SSA had awarded him.

This all happened after big battles over both of his pending claims.

There was a specific regulation  his claim in 1992  they used for the favorable additional year of the 100% P & T award. 

I will try to find it.I posted it here long ago, and was sure they would ignore that regulation but they actually did the decision right…

after  many  battles ,and without those ludicrous battles, VA could have awarded this claim to him- in his lifetime.

 

 

 

 

 

[porgee]

After finding the decisions I was wrong about the RO change the decision if was BVA

WHO CHANGE ITI got a decision in April granting 2003 eed date and another one in MAY 17.

The Board vacates the April decision citing 3.400.. TDIU GRANT cannot be earlier than the effective

date of the service connection grant for the disability upon which the TDIU IS BASED.

 So they got me on that because my service connection began in 2004 but the SSDI began in 2003. It best 

to reread your decisions at a later date because I bet you will miss some information. I don't see no way out

it sound about right what yall think

[Berta]

Porgee, they might be right on the EED. Then again sometimes they are wrong!

On June 9,2017 you posted this info here:

“I thank everyone for your response. This is what I think happen to my claim.

My NOD ask for EED of 2003 and the Judge agreed "but they claim I filed the claim

in 2004 and not in 2003. Medical records says I was disable since 2003 with hospital records 

showing I had surgery and I was disable IN 2003. That's why I say I give up. I cant find the record

that I file in 2003 and I file this same claim through SSDI and they tell me SSDI would not file

VA COMP with SSDI for VA benefits. My lost what can I do?”

https://community.hadit.com/topic/69945-bva-decision/gsc.tab=0#gsc.tab=0

Years ago

 Georgiapapa offered this quote from the VBM:

 

“VBM 5.9 (Effective Date for Rating Increases) states the following:

"Once the VA grants a claim for an increased rating, it must determine the date from which payment of the increased rating should begin. The date that governs when the change in benefit should be paid is known as the effective date of the claim. The general rule governing effective dates for claims for rating increases is that benefits are effective from the date that the VA received the claim or the date that entitlement arose (which means the date the disability increased in severity) whichever is later. However under circumstances, a veteran may be awarded an effective date that is earlier than this general rule."

"The effective date for an award of a rating increase may date back one year prior to the date of the claim for an increase if "it is ascertainable that an increase in disability had occurred" within this time frame. The CAVC has stated that, in order to receive an earlier effective date, the veteran must submit evidence that indicates that there has been more than a marginal increase in disability. The veteran must show that the disability has increased to the next disability level within the year preceding the date of the claim. In determining whether a disability has undergone an interview increase within the year preceding the date of the claim, the VA must consider all of the evidence of record. "

https://community.hadit.com/topic/61126-whats-my-correct-effective-date-for-100-rating/#gsc.tab=0

I am sure I too learned of the extra year retro from the VBM( Veteran’s Benefits Manual-NVLSP 1992 edition )and need to make this point….as above states:

‘The effective date for an award of a rating increase may date back one year prior to the date of the claim for an increase if "it is ascertainable that an increase in disability had occurred" within this time frame.’

In my husband’s case, the VA knew of his 1992  SSA award- and an increase in disability had obviously occurred within this time frame ( within one year prior to the date of his initial claim)

(oddly enough VA had also told my 2 State Senators and my Congressman that  SSA had refused to release those records- this was  a blatant lie to CTAs-VA had failed to get them and when they finally did, they had to award the most favorable EED….. it pays to check out anything the VA says that does not seem kosher)

So within that one year time frame VA did have notice of the SSA records and then this part of the VBM quote was fulfilled:

‘ the veteran must submit evidence that indicates that there has been more than a marginal increase in disability. The veteran must show that the disability has increased to the next disability level within the year preceding the date of the claim. ‘

Then because of the brouhaha with VA’s lies on paper (I still have those letters they sent to my Senators and Congressman) I felt I had to prove –just in case they Never considered the SSDI award,( since by then I was the surviving spouse claimant- this claim took from 1992 to 1997 to award at the RO-he died in 1994) I accumulated ALL of his VA MH records, many which the VARO said they  did not have, but I got them from his shrink as well as his 21 days inhouse PTSD records, which the VARO claimed they didn’t have, and his more recent hospitalization for PTSD, and sent this all in to the RO.

I had proven his disability (at 30%) had increased to the point of unemployability-even if he had never received SSDI for PTSD.

In the above VBM quote they do not mention SSA awards, but have another section in the VBM on that.

SSDI awards are, in essence, based on  an independent medical opinion-that is  based on all medical evidence they have.

 My husband’s SSDI PTSD award was based solely on VA medical records, and SSA awarded in mere months but my RO took 5 years to properly award him 100% P & T for PTSD. He was dead for almost 3 years by then.

You are 150% RIGHT with this statement:

 

" It best 

to reread your decisions at a later date because I bet you will miss some information. "

And that is  information even a good vet rep could miss too.

And it is almost imperative these days  for any vet to have a copy of your C file,copies of  all medical records, and a copy of your SMRs.

To me this indicates your disability increased in 2003

 

" Medical records says I was disable since 2003 with hospital records 

showing I had surgery and I was disable IN 2003."

Did the VA list that record as evidence on the award letter? If this is for the same disability they granted but only back to 2004, and this surgery was done at a VA or they had private records of it, it seems you might have a chance here to prove this

‘ the veteran must submit evidence that indicates that there has been more than a marginal increase in disability. The veteran must show that the disability has increased to the next disability level within the year preceding the date of the claim. ‘

I hope others chime in- because I hate to think any vet has gotten snookered out of their proper retro.

That BVA statement you posted is strange.:

"The Board vacates the April decision citing 3.400.. TDIU GRANT cannot be earlier than the effective

date of the service connection grant for the disability upon which the TDIU IS BASED." 

any takers?    It does not make sense to me.

 

 

 

[porgee]

I am TDIU FOR MY BACK & LEGS only and I wasn't SC for it until 2004. The SSDI records was included in the decision

but it say from 2006 which is when I got the decision but it was approve back until 2003 when I filed for SSDI.

it was a private hospital that did the surgery and they have the records