Claim Effective Date

[astrong5587]

I wanted to know are the effective dates under the rated disabilities on ebenefits what they go by? My reopened claim for PTSD got approved and the effective date says December of 2015. The rest of my reopened claims that were approved say December of 2017. Has this been the case for anyone? 

[broncovet]

Yes.  The general rule for effective dates is the later of the "date of claim" or facts found.  That is, the date the doc said you became disabled.  Very often the VA uses the date of C and P exam.  This is wrong on multiple levels:

1.  This assumes you went to a c and p exam, and you were healthy.  After you exit the exam, you have a disability.  Gee, that doc surely should be sued, for causing your disability..what DID he do to you.  Its bogus. 

2.  It also assumes the Veteran is clairvoyant.  So, he applies for disability compensation in 2013, "predicting" he would have a disease in 2018.  Sure enough, the doc does a c and p exam and he got the desease he foretold.  This is crazy..the Vet did NOT apply because he thought he may get a disability down the road, instead, he was already suffering from it.  Its not the Vets fault that VA did not do a c and p exam for 5 years, AND the doc failed to give a date when he thought the Vet was disabled, if other than the date the Vet applied.  

[vetquest]

Broncovet,

I agree that this is wrong on multiple levels but it sometimes appears to be SOP for the VA.  I won a ten year old claim and they backdated my 100% for ten years but only gave me SMC for the date of the decision.  I am now 100% P&T and I was advised by my lawyer and VSO to let it go.  I do not like letting it go but without my lawyer I do not believe I could win this decision.

[broncovet]

If I had listened to my VSO (and or attorneys), then I would still be at 0 percent.  Both of these have a dog in the fight:

1.  It means more work, for the same amount of pay for your VSO.  

2.  The lawyer may or may not specialize in "earlier effective date" claims, and sometimes they "skim the cream" by taking only cases that are almost a sure bet.  Remeber, when the lawyer accepts you as a client he will invest some amount of money in phone calls, postage, legal help, and his valuable time which he could use to bill someone else.  Therefore, many dont like to take a client where the outcome is not so certain.  

    Up to and including the BVA level, you really dont need an attorney.  Simply appeal, and precisely state your reasons why you feel the effective date is wrong.  Hint:  "Your opinion" does not matter a whole lot, so cite opinions of others that do make a difference, for example CAVC precedent cases, Federal circuit, regulations, and your doctors opinions.  Say it like this: 

Quote

 

  "In the VARO decision dated, 09 Sept 2014, the representative stated his reasons and bases to be (the Veteran was not housebound at this time).  However, this is in conflict with Howell vs Nicholson, which states:

   

Quote

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

    Therefore, the VARO neglected to consider the effect of Howell vs Nicholson, and the SMC S should be awarded, as Im not working and not leaving the house "for work".  

    If you put in there "your opinion", then sure, you want your benefits.  "Your opinion" was not there, only the opinions of the rater, and the judge of Howell vs Nicholson.  

source:

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

 

 

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