Effective date of claim

[jlrith]

I have a pending appeal that I am fighting and need some help is determining the appropriate date of claim.

I had an increase in symptoms of my cold injury and submitted a claim in February, 2012.  

In March 2012 the VA sent me a request to schedule a C&P exam, which, due to being unable to contact the scheduler for 2 weeks (they were somehow "busy" that entire time) the exam request expired.  

I contacted the VA by phone and by letter concerning this but was refused a new exam because I missed the first exam "without just cause."

I received a denial of my claim in August, 2012 and notified the VA of their failure concerning the missed C&P exam.  This was not a proper notice of disagreement, I do not believe.  

I was eventually granted service connection for my disability dating to September, 2012.  

Question is, should I be entitled to the February 2012 date of claim, and if so, how do I justify that in legal terms?

[broncovet]

I take it you did "not" appeal the effective date of the September, 2012 RO decision within 12 months?  

By not doing so, you made it hard on yourself, if, indeed, you did not appeal the 2012 decisions effective date.  

However, all is "not lost" but, you may need to decide if its worth it to try to get this when just a few months retro are at stake.  

The general rules for effective dates are the later of the facts found or date of claim.  

However, there are special circumstances in seeking an increase which May apply to you.  

Carefully read: 38 C.F.R. § 3.400(o) , which can provide an earlier effective date when an increase occurs within a year.  I dont know if this applies to you or not.  

[jlrith]

I found a much more applicable regulation that applies to this: 3.156(b)

38 CFR 3.156 (b) Pending claim:  “New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.”

If you submit "new and material evidence" within one year of the decision, the claim is considered to remain open.  In that case it does not matter if you file a Notice of Disagreement.  

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

Tack that on to the pile of other blatant errors the DRO made in my claim.  

[broncovet]

Yes, we have talked about 3.156 multiple times.  It sounds like you should consider a lawyer to help you win your EED, if you dont win it at the BVA level.