Ebenifits effective date

[Raulrojas88]

Good morning everyone, 
Let me start by saying thank you all for all your input in keeping this community strong. 
Ok so I have been fighting the fight with va since 2015, originally rated at 20%, I submitted an appeal in dec 2015, than opt in the ramp in June 2018. I received my award of 80% last Thursday and have not received by brown envelope, but when I check ebenifits my effective dates next to my disabilities and the dates are all wack out. Example 1/28/2019, 11/3/18, and 3/4/19. I might be jumping the gun, but has anyone experience something like this. I haven’t received retro pay or anything

[Berta]

I noticed something else-they mentioned a prior exam you had for PTSD, apparently you claimed PTSD and TBI within one year after your discharge.......but neither was diagnosed then......and you did claim the  back and knee as well-

This is what could be the basis of a CUE for a better EED.If they had, in the older claim, the same evidence they did for this recent decision.

Do you have a copy of that older decision and if so can you scan and attach that here?

Those exams were in Dec 2015, and the rating decision is dated January 5, 2016.

I am having internet problems- high altitude clouds, usual for this time of year ,so I know others will chime in....

 

 

 

[Berta]

Can anyone else here read the scans and opine on them?

I hope they see what I saw----- it didnt make sense.Not because it is a little out of order- 

because of their rationale-

Do you have a copy of the initial denial and a copy of the C & P exam that denied the claim?

I also saw that they considered this as a re=opened claim- and gave you the proper EEDs for a re -open but they called the TBI and PTSD exams the"initial "exams- for this award yet they denied in the past-that is why I asked about the copies of the older denial and the C & P exam they did then.

 

[HorizontalMike]

It appears to me, that the C&P Examiner is lumping together; TBI, PTSD, Depression, and Alcohol Abuse into JUST ONE DISABILITY.  The inability of the Examiner to differentiate/separate these symptoms(read disabilities) from one another, it should be pointed out, falls under: 

§3.102  Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.  (Authority: 38 U.S.C. 501(a))

 

            [50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]

In other words, You should be considering pursuing each of the above as separate disabilities.  The only possible exception is alcohol abuse, though alcohol abuse may/can be sought as a secondary disability to any of the other three, IMO. 

 

 

FWIW, I am in a very similar situation in my case.  The VA is/was trying to lump my depression under TBI, though depression has its own diagnosis under §4.130   Schedule of ratings—mental disorders. --- 9434   Major depressive disorder and rated under 9440.

chronic adjustment disorder

9440    Chronic adjustment disorder

            General Rating Formula for Mental Disorders:

                  Total occupational and social impairment, due to such symptoms as:

                        gross impairment in thought processes or communication;

                        persistent delusions or hallucinations; grossly inappropriate

                        behavior; persistent danger of hurting self or others; intermittent

                        inability to perform activities of daily living (including maintenance

                        of minimal personal hygiene); disorientation to time or place; memory

                        loss for names of close relatives, own occupation, or own name .................... 100

 

                  Occupational and social impairment, with deficiencies in most areas,

                        such as work, school, family relations, judgment, thinking, or mood,

                        due to such symptoms as: suicidal ideation; obsessional rituals

                        which interfere with routine activities; speech intermittently illogical,

                        obscure, or irrelevant; near-continuous panic or depression affecting

                        the ability to function independently, appropriately and effectively;

                        impaired impulse control (such as unprovoked irritability with periods

                        of violence); spatial disorientation; neglect of personal appearance and

                        hygiene; difficulty in adapting to stressful circumstances (including

                        work or a worklike setting); inability to establish and maintain

                        effective relationships ........................................................................................ 70

 

                  Occupational and social impairment with reduced reliability and

                        productivity due to such symptoms as: flattened affect; circumstantial,

                        circumlocutory, or stereotyped speech; panic attacks more than once

                        a week; difficulty in understanding complex commands; impairment

                        of short- and long-term memory (e.g., retention of only highly learned

                        material, forgetting to complete tasks); impaired judgment; impaired

                        abstract thinking; disturbances of motivation and mood; difficulty in

                        establishing and maintaining effective work and social relationships ............... 50

 

                  Occupational and social impairment with occasional decrease in work

                        efficiency and intermittent periods of inability to perform occupational

                        tasks (although generally functioning satisfactorily, with routine

                        behavior, self-care, and conversation normal), due to such symptoms

                        as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or

                        less often), chronic sleep impairment, mild memory loss (such as

                        forgetting names, directions, recent events) ...................................................... 30

 

                  Occupational and social impairment due to mild or transient symptoms

                        which decrease work efficiency and ability to perform occupational

                        tasks only during periods of significant stress, or; symptoms controlled

                        by continuous medication .................................................................................. 10

 

                  A mental condition has been formally diagnosed, but symptoms are not

                        severe enough either to interfere with occupational and social

                        functioning or to require continuous medication.................................................. 0

 

 

 

[broncovet]

The (effective date) regulation reads that it is the LATER of "claim date" or facts found.   And, there are several exceptions:

Source: https://www.law.cornell.edu/uscode/text/38/5110

 

38 U.S. Code § 5110 - Effective dates of awards

• U.S. Code
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(a)

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation,dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which theagency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board ofVeterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veteransand Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(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.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned,the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010; Pub. L. 87–674, § 3, Sept. 19, 1962, 76 Stat. 558; Pub. L. 87–825, § 1, Oct. 15, 1962, 76 Stat. 948; Pub. L. 91–376, § 7, Aug. 12, 1970, 84 Stat. 790; Pub. L. 91–584, § 13, Dec. 24, 1970, 84 Stat. 1578; Pub. L. 93–177, § 6(a), Dec. 6, 1973, 87 Stat. 696; Pub. L. 93–527, § 9(b), Dec. 21, 1974, 88 Stat. 1705; Pub. L. 94–71, title I, § 104, Aug. 5, 1975, 89 Stat. 396; Pub. L. 97–66, title II, § 204(b), Oct. 17, 1981, 95 Stat. 1029; Pub. L. 98–160, title VII, § 703(1), Nov. 21, 1983, 97 Stat. 1010; Pub. L. 98–223, title II, § 213(3), Mar. 2, 1984, 98 Stat. 46; Pub. L. 98–369, div. B, title V, § 2501(a), July 18, 1984, 98 Stat. 1116; Pub. L. 99–576, title VII, § 701(63), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5110 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §§ 4(a)(2)(A)(vi), (b)(4)(B), 5(c)(1), Aug. 6, 1991, 105 Stat. 403, 405, 406; Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688; Pub. L. 108–454, title III, § 305, Dec. 10, 2004, 118 Stat. 3611; Pub. L. 112–154, title V, § 506, Aug. 6, 2012, 126 Stat. 1193; Pub. L. 115–55, § 2(l), Aug. 23, 2017, 131 Stat. 1110.)

 

Edited April 13, 2019 by broncovet
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[Raulrojas88]

Sorry they are all out of order I took pics and uploaded them