first filed & EED?

[Buck52]

I realize this has been Answered 100 times

But I still do not understand it.

If Veteran files HIS FIRST CLAIM IN  Feb1998  claim and is denied and NOD within a year  Aug 1998 and gets a  Service Connection but at 0%    ok then in 1999 files  a  claim  as reopen for increase and is awarded 50% for the same claim he filed back in 1998  then  a year later he files for increase on the 50% in 2002/2003 and is Awarded 90% INFEERED TDIU P&T NO FUTURE EXAMS  DISABILITY CHRONIC IN NATURE

OK what would be the Veterans EED? FOR THE 20 YEAR PROTECTION RULE?

  Would VA go back to the 1998 date the claim was first filed?  or go back to the date the 50% was increase to the 90% and was Inferred the IU in 2002/2003?

 

Thanks in Advance.

[broncovet]

Ok.  Do you know about Fenderson Ratings?  Fenderson (staged) ratings happen when it takes VA forever to adjuticate, and the condition worsens through time.     Keep remembering the general effecitive date rule is the later of the date applied, or when the doc said you became disabled. 

You posted:

Quote

Then in 1999 files  a  claim  as reopen for increase and is awarded 50% for the same claim he filed back in 1998 

Ok.  Again the effective date is the later of the facts found or the date applied.  Since the date applied is 1999, it can not be earlier than that.  Exception:  USC 5110 in the event of an increase:

Quote

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

 

Therefore, since its within a year, you should get an effective date of 1998, but you may have to appeal.  I personally was awarded about 10 more months and the board cited the reason in quotes.  They often miss this.  

The 20 year protection rule is the same as the effective date.  The fact that it takes VA forever to process your claim is not the fault of the Veteran.  

Alex got a 1994 effective date, which was already 20 year protected.  

Edited September 7, 2018 by broncovet
add more

[Buck52]

Yes I agree

I am looking for the document that has the date first filed for the increase  either the 50% or the 90%  the 90% would been a later date  but when a veteran files for increase for the same disability   looks like to me anyway that would be the 1999 date  I have look and looked for that record  and I can't find it...I do remember reading it when I got my award back in 2002/2003  the DRO Mention it

I remember he said something like this 

''Although you filed your claim back in 1998  we used the dated you filed for increase which was 1999...but I did NOD this same claim back in Aug of 1998  when I nod the first denial.  Remember I first filed in Feb 1998 and was denied  then in Aug I sent in NOD on that denial and ask for reconcideration&they service connected it at 0%..that worked I filed for increase on the 0%and fiIed for another increase  got 50% in 2000

Then filed to reopen in 2002 From the last date of increase which was 2000  so my NOD TIME LIMIT WAS OUT    THIS  IS WHY I ask to reopen

I guess I am thinking when a Veteran is denied and starts appeals for the SAME DISABILITY  Then when the VA Adjudicates that claim...the EED Goes back to when he first filed......it took that long to gather up evidence to have a well grounded claim...the DRO Mention that too

i WAS WAITING ON MY c-file this is mention in one of my appeals  I never recieved my C-file during the entire time of this claim... period.

It seems they made a mistake by not rating the claim the first time...I mean going from a denial to Service Connection in less than a year  and then another year on a NOD  From 0% to 50%  that is a big difference in ratings...which to me should have been rated the 50% when they O% SERVICE CONNECTED it in the first place.

My  Audiology report is what they used to rate the 50% and the report was done in 1998 at Big Spring Tx  I was in the VA Hospital for 2 weeks with an appendectomy and at clearing out of all the clinics, they tested my hearing and the Audiologists that did the hearing test mention to me I'' have profound hearing loss''  '' you should file a claim''  so I did.

I wish I had known back then what the hell I was doing... grrrrrrrrr

 

I have most of the records to prove all of this  and get this I had a DRO give me the 50% And I never requested a DRO Hearing back in 1999  this is when they gave me the 50%  well it was actually 2000 but was decided by a DRO in 1999...I never know this until I was looking into my C-FILE.

I wish I could get an experienced  VA Attorney to look at this for me  I think they committed CUE when they service connected it at 0%...you don't go from 0% hearing loss  to 50% hearing loss within a Year   its possible but I feel I was already at 50%and that DRO THAT I WAS UNAWARE OF USED A HEARING TEST FROM 1998 to rate the 50%..SO I AM THINKING WHY DIDN'T THEY RATE IT CORRECT BACK THEN?

A good Attorney would have fun with this one.

But I can't afford one right now.

Edited September 7, 2018 by Buck52

[broncovet]

11 hours ago, Buck52 said:

 

 

Quote

guess I am thinking when a Veteran is denied and starts appeals for the SAME DISABILITY  Then when the VA Adjudicates that claim...the EED Goes back to when he first filed......it took that long to gather up evidence to have a well grounded claim...the DRO Mention that too

True, but you are getting mixed up and repeating the same mistake over and over, and I do that, also.  You have a fenderson rating.  You had no disability prior to 99, then 50 percent from 1998 (You filed for an increase in 99, but get it back to 1998, since you were increased from 0 to 50 percent), then you got another increase in year 2000.  

So, your 20 year protection for 50 percent begins in 1998, and the protection for 20 years for 100 percent begins in year 2000.  

[broncovet]

You posted:

Quote

which to me should have been rated the 50% when they O% SERVICE CONNECTED it in the first place.

My  Audiology report is what they used to rate the 50% and the report was done in 1998 at Big Spring Tx  I was in the VA Hospital for 2 weeks with an appendectomy and at clearing out of all the clinics, they tested my hearing and the Audiologists that did the hearing test mention to me I'' have profound hearing loss'' 

Are you tdiu or did you apply for it?  Im currently in appeals, and VA did the same thing to me.  I applied in 2002, appealed, the BVA granted.  The VARO implemented in 2004 at 0 percent.  I appealed, and they awarded 40 percent, but treated it as a new claim and made the effective date 2004.  I had also applied for tdiu (in 2002)  and eventually that was granted.  However, they would only give me 2004 effective date.  Im at the CAVC now, and our cases are similar enough you can use mine!!!!

(I think).    

[broncovet]

Send what you told me to an attorney, along with your cfile on DVD.  If you win, you get 80 percent more (after you subtract an attorney fee).   

Now, if you hired an attorney at the right time (just after a board denial, or you can even appeal a bva award, because you can appeal the effective date!!), it will save you the 20 percent.  

There is no doubt VA messed up, the choice you need to make is:

1.  Do it yourself. 

2.  Hire an attorney.  

I chose number 2.  Dont worry about your 20 year protections!!  By the time the smoke clears, you will be over the 20 years, but it wont matter anyway, because you didnt actually improve under ordinary conditions of life.

[Buck52]

Yes I agree with ya broncovet

I was 50% at the time I got the 40%increase which brought my rating up to 90% then another 10% for tinnitus  but was not enough for the 100% scheduler..so that made me at 90% combined.   trickey trickey..why didn't they go ahead and give the 10% for tinnitus at the time I was granted the 40%increase?  then that would have gave me 100%  but they didn;t do it like that  they said my 40%was increase in June 2003/and the tinnitus was awarded id FEB 2001  So that made me have the tinnitus first before the 40%increase to the 90%combined

Note : all this was decided at the time of my hearing  the DRO PUT DIFFERENT DATES FOR THE TWO RATINGS..I HAD WONDERED ABOUT THAT TOO?

I need the Record where the DRO Mention they used the date I first filed for increase in 1999  DRO had my Rep (DAV VSO )at my RO hearing to file the IU Ap at the time of my hearing and they expedited it  with the grant sought Immediately 

OK if I was paid the correct EED back then  from 1999 to 2003  that's what almost 4 years of retro the difference from 50%  to 100%  48 months....my retro was only 10.000 bucks,  so somethings wrong with this picture .... its ugly.

A good Attorney would have a field day with this...but they want what I don't have and that's the green stuff (Money)

Edited September 7, 2018 by Buck52