Appealing and effective date I need help

[mcsanty]

 Good morning veterans 

After four years I finally  receive my NOD Rating decision ,and I’m happy with this  Reading decision, but I Disagree  with the effective date .

I have proof to show it should  it should be an early date  So , I decided to appeal the Effective  date,  I am not a good writer , And there is no VSO near me, so I have to do this on my own ,Where can I find samples of statements Or good written arguments that will help me write my own statement.

 Thank you 

[Berta]

Of all of my 20 year issues with VA, they always managed to get the EED correct-

But I can develop a sample from my own claims ,if they did do it wrong:

My husband was granted a 1151 100% P & T award back to Aug 1992, and  to the date of his death ( He died 23 years ago,this was a posthumous award. As his widow I am eligible for all accrued 1151 retro,under GC Pres Op 08-97.They gave the correct EED but I have CUE on the amount of retro which is wrong-

But 

Lets say VA said the EED was August 1993 in their decision instead of Aug 1992. 

"I would promptly file a CUE claim stating, the VA under auspices of 38 USC 5109, clearly violated 38 CFR 4.6

CUE Clear and unmistakable Error  38 USC 5109

38 CFR 4.6 

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

 

( I have used this regulation many times and would have if they made the error above in his EED)because the evidence in VA's possession,when my husband died  clearly shows that his catatrophic stroke occurred in Aug 1992, by all evidence of record to include SSA award, VocRehab statement, AO Settlement Fund statements, etc etc etc , as well as his admission to the Bath VAMC in August 1992 and subsequent transfer to Syracuse VA 1992.

I have enclosed evidence you had but failed to properly consider under violation of 38 CFR 4.6,

and the error manifested a detrimental outcome to me, as his widow because you still owe me one year of retroactive accrued benefits at 100 % P & T."

And then I would enclose some of the evidence.

My point is

1.you need to state the error they made.

It is most probably a Legal error. You can file a NOD on the award letter but I think CUE (38 USC 5109) is the best bet and what most vets who feel their retro is wrong , file as CUE ,under 38 USC 5109 ,as the BVA website reveals.

2. You need to state the evidence you have enclosed ( that was in VA's possession)when they made the CUE. that should have garnered the better EED.

3. You need to state that their legal error was detrimental to you as the manifested outcome was not the proper Retoactive amount.

We have no idea why you feel your EED is wrong. Can you scan and attach here their rationale in the decision in the award letter, that includes the EED they arrived at?

Or is it the Audit they enclosed? I checked over 4 audits did VA on my claims, since 2003 and they were all wrong.One  to the tune of 40 thousand and the recent one is close to that in error as well.

VA ignored my letters on one audit but the Regional COunsel found it, i 2003 due to a differtent matter and order them via CUE to pay me.They did pay but that audit too was 11 thousand off.I cued that and They paid that as well.

 

Cover your  file # and name prior to scanning it.

 

 

 

 

 

 

 

Edited August 24, 2018 by Berta

[vetquest]

McSanty,

I can supply a letter for an eed that I am working on for the VA.  It might not be what you are looking for but here goes. I find that I have to leave all emotion out of the letter and state the facts, usually facts provided by a remand or a SOC.

In a remand.docx

Edited August 24, 2018 by vetquest

[mcsanty]

29 minutes ago, Berta said:

Of all of my 20 year issues with VA, they always managed to get the EED correct-

But I can develop a sample from my own claims ,if they did do it wrong:

My husband was granted a 1151 100% P & T award back to Aug 1992, and  to the date of his death ( He died 23 years ago,this was a posthumous award. As his widow I am eligible for all accrued 1151 retro,under GC Pres Op 08-97.They gave the correct EED but I have CUE on the amount of retro which is wrong-

But 

Lets say VA said the EED was August 1993 in their decision instead of Aug 1992. 

"I would promptly file a CUE claim stating, the VA under auspices of 38 USC 5109, clearly violated 38 CFR 4.6

CUE Clear and unmistakable Error  38 USC 5109

38 CFR 4.6 

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

 

( I have used this regulation many times and would have if they made the error above in his EED)because the evidence in VA's possession,when my husband died  clearly shows that his catatrophic stroke occurred in Aug 1992, by all evidence of record to include SSA award, VocRehab statement, AO Settlement Fund statements, etc etc etc , as well as his admission to the Bath VAMC in August 1992 and subsequent transfer to Syracuse VA 1992.

I have enclosed evidence you had but failed to properly consider under violation of 38 CFR 4.6,

and the error manifested a detrimental outcome to me, as his widow because you still owe me one year of retroactive accrued benefits at 100 % P & T."

And then I would enclose some of the evidence.

My point is

1.you need to state the error they made.

It is most probably a Legal error. You can file a NOD on the award letter but I think CUE (38 USC 5109) is the best bet and what most vets who feel their retro is wrong , file as CUE ,under 38 USC 5109 ,as the BVA website reveals.

2. You need to state the evidence you have enclosed ( that was in VA's possession)when they made the CUE. that should have garnered the better EED.

3. You need to state that their legal error was detrimental to you as the manifested outcome was not the proper Retoactive amount.

We have no idea why you feel your EED is wrong. Can you scan and attach here their rationale in the decision in the award letter, that includes the EED they arrived at?

Or is it the Audit they enclosed? I checked over 4 audits did VA on my claims, since 2003 and they were all wrong.One  to the tune of 40 thousand and the recent one is close to that in error as well.

VA ignored my letters on one audit but the Regional COunsel found it, i 2003 due to a differtent matter and order them via CUE to pay me.They did pay but that audit too was 11 thousand off.I cued that and They paid that as well.

 

Cover your  file # and name prior to scanning it.

 

 

 

 

 

 

 

Thank you for your help , Miss Bertha I will do it as soon as I get home from work.

[mcsanty]

9 minutes ago, vetquest said:

McSanty,

I can supply a letter for an eed that I am working on for the VA.  It might not be what you are looking for but here goes. I find that I have to leave all emotion out of the letter and state the facts, usually facts provided by a remand or a SOC.

In a remand.docx

Thank you  ,vet quest

[Berta]

Vet quest =that is a good letter- but I hope they get it-100% plus 60 or over for additional independent disability equals SMC S 

I used the SMC mandate and filed CUE when they failed to consider their mandate. 

The SMC  CUE I won , I stated was for "Lack of consideration of the SMC mandate". That was their legal error.

SMC is an inferred issue whenever the ratings warrant it to be considered.It is mandated by law.

I sent them the Mandate.It was dated years prior  to the decision I cued.

It was a DIC award letter clearly statng my husbands 100% SC P & T and his 1151 stroke rating, way over 60% and the fact he was Housebound as well supported the CUE.

My dumb vet rep at the time told me not to appeal the award because 1151 issues are different. They are not different. 

The established medical evidence they had at time of the alleged CUE fully supported the fact that they legally had to consider the SMC mandate.

I had to spell that out to them like they were 10 years old.

 

The SMC Mandate is stated here in the CUE forum somewhere-I got it from the VBM by NVLSP.

 

 

[broncovet]

Your effective date is the LATER of the "facts found" or the date you applied.  You need to look at your evidence contained in the Cfile.  

For example, if you applied in January, 2004, but your doctor examined you in 2008 and said your disability began in 2008, then you wont get 2004 as your effective date.  

So, as usual, evidence wins claims.  In this example, if you found ANOTHER doctor who examined you in 2004, and he said your disability began in 2004, then your date should be 2004.  

Effective dates are complex; there are exceptions to the general effective date rules.  

Without seeing your files, its difficult/impossible for us to know what your effective date "should" be...we dont know the date you applied, we dont know when your exam was and we dont know what the doc said.  

Its also important to know whether this was for an increase, if you had "just gotten out of service", and, if you are a Nehmer Vet or are eligible for presumptive SC.  

My advice is to take your file to an attorney, and ask him if he sees an earlier effective date.  If he says, "yes", then you can decide if you want to hire him/her to represent you.