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Appeal effective date


Douglas

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They can try to reduce a rating whether a vet reopens their claim ,files a new claim , during a Re-elavuation they (VA) ordered, or on a whim, unsupported by any of the evidence...I helped my husband with the latter-

they proposed to reduce and I used their very own regulations they used for the reduction proposal , against them, to get the reduction proposal overturned, with a Strong NOD I wrote.

But I would not hesitate to file for a better EED. If we know more, we can help more.

An EED claim usually involves these regulations 38 CFR 3.156 , or CUE.

There are many claims here regarding a better EED.

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There is good info in this thread on 3.156 claims:

https://community.hadit.com/topic/48552-svr-show-follow-up-to-38-cfr-3156-c/page/3/

and this started out as a 3.156 claim but instead was a CUE with mega retro:

 

Mega

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I must politely dissent with my esteemed colleague's assessment above. §3.156(c)(1) is  unequivocal in it's instructions:

 Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim

My disagreement is elementary- a claim remains pending until there is some concrete evidence it has been addressed and decided. Here, the mere association of the STRs belatedly to a claims file automatically triggers §3.156(c) as a freestanding claim and it cannot be CUE because the reconsideration  which shall be accorded under  §3.156(c) hasn't occurred yet. One could characterize it as a chicken before the egg conundrum.

Granted, I've been forced to refile these as CUE to get them changed and even had to go to the BVA to do it. I get that. No DRO wants a ginormous six-figure 156c retro payout on their resume. Better to kite it up to the BVA and let them suck on that egg. The M 21 is a good advisory on this. The say you can file it on SF 8.5 X 11 (white). SF 8.5x11 stands for standard form 8.5 inches by 11 inches white computer paper-typed or hand written.

I got this from my VA Change Management Agent ( I call her Supergirl) this morning. I had a CUE kicked out of VBMS  last week because I used a 526 instead of a 20-0995. Okay, how can you use the supplemental claim with CUE? By operation of law, you cannot add new evidence to a CUE. filing, so.... Here's her response.

 

  1. You do not need a form for a CUE. Are you wanting to file a Supplemental Claim? Then you would need new evidence, but not for a CUE.

                        III.ii.2.B.1.c.  Benefit Requests Not Requiring a Prescribed Form  prescribed claim form is not required for requests for

·                   review based on clear and unmistakable error (CUE)

·                   substitution

·                   a finding of incompetency received from a first or third party, and

·                   removal of a dependent.

Anyway. to me an EED due to a §3.156(C) error requires a decision in the first instance and for finality to attach with no appeal. CUE might ensue after an adjudication of the applicability of §3.156(c)(3),(4) but not until there is an actual, promulgated decision. I'm sure Berta can understand the legal nuance I'm implying here.

Semantically, the legal standard of review of a Motion to Revise (CUE) requires a fait accompli. Absent a reconsideration first- up or down- there can't be a CUE yet. A reconsideration is a powerful tool. If you were granted claims recently that you filed for 40 years ago and VA grants, you get to carry that back  40 years- assuming, arguendo, you can show your degree of disability arose then. CUE requires you go down the harsher  road. That's a much higher bar to clear. Quite frankly, you are precluded from arguing how the evidence was weighed or decided in a CUE.

Certainly, the evidence in the old STRs should fall into the " the evidence, as it was known, wasn't before the adjudicator" clause of CUE, but again, a reconsideration is not required to pass the next qualifier of CUE- i.e. 'manifestly changed the outcome" codicil in §3.105. Thus, I disagree with the applicability of the CUE standard of review. I filed this argument in a 2015 brief and  VLJ Vito Clementi agreed with my legal standard of review argument. I also would say it depends on which judge you get as to how they would legally characterize this point of law. There are definitely two schools of thought on the subject-maybe more...

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Great Information Alex

*when I learn to decipher it all out*:wink:

Thanks my friend.

Edited by Buck52 (see edit history)
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CUE, and 38 CFR 3.156, contrary to popular belief, are not "the only" methods of winning an EED.  

For example, VA often overlooks it when the Veteran applies for benefits within a year of exit from  service.  

38 5110 explains it this way:

Quote

(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.

Or, in the case of an increase USC 5110 permits up to a year's retro:

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.

 

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I would say or just my opinion   when most of us old Vietnam dogs got out in the late 60's early 70's  Most of us never knew about these claims and was never considered disable due to our condition or diseases that arose years later  ..if a veterans condition was due to his military service  in my opinion that should be his EED not the date he first filed.

In my opinion this is why they have these regulations broncovet  has posted   filing within 1 year after you leave the military.

so you newer veterans or G WAR vets  be sure to file within one year if you have any conditions that can be service connected.

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A great discussion! And one can say that CUE and 3.156 to some degree have nuances.

A reconsideration is mandated by the appearance of "newly discovered service records."

The Federal District court has found the word "relevant" regarding those records, as ambiguous-

(Kisor V Shinseki 869 F.3d 1360,1367, -68 (2017)

And NVLSP gives this example- say a Vietnam veteran is denied because he cannot prove he witnessed the death of a unit soldier.

CRUR existed at the time of the initial denial ( part of former JSRRC -now US Army and Joint Services Records Research Ceneter ( CRUR )Center for Research of Unit Records).

The VA had received a verification of the soldiers death, the same name the veteran had identified to  VA ,and was in his same unit.The CRUR verification however did not mention the veteran claimant by name.

Is that a "relevant" record- Yes  because it corroborates the veteran's description of the stressor, same deceased soldier,same, time, same place, same unit.

I believe Emerson V McDonald covers the exceptions to the EEDs.......within 38 CFR 3.156...

will check Emerson and post

 

Edited by Berta (see edit history)
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"EMERSON V. MCDONALD

"Emerson v. McDonald centered on effective dates when reopening a VA claim. Veterans are able to reopen VA claims if new and material evidence arises. Usually, these reopened claims’ effective date will be that of when new and material evidence is submitted, with one exception outlined in 38 § CFR 3.156(c): this states that the effective date for a claim reopened with service records not originally considered in the claim can go back to the date of the initial claim.

For example, let’s say a Vietnam combat veteran receives a diagnosis of Post-Traumatic Stress Disorder in 1980 and promptly files a VA disability claim, however, VA did not obtain service records proving that he was in combat in Vietnam. Now in 2018, the veteran requests a copy of his service records that do, in fact, show he was a Vietnam combat veteran. If the veteran still has a diagnosis of PTSD, he may submit these service records to reopen his PTSD VA claim with an effective date in 1980."

https://cck-law.com/news/10-court-of-appeals-for-veterans-claims-cases-all-veterans-should-know-1/

 

I was wrong when I said exceptions- this is the only EED exception-within 38 CFR 3.156.

And the above 10 CAVC cases are well worth taking the time to read.

 

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We dont have a lot of (court) history to draw on in the differnces of "old 38 cfr 3.156" and "new 3.156".  Notably, as Berta pointed out, the word "Material" has been replaced with "relevant".  

My reading suggests that "material" requires it be outcome determinative "in of itself".  

However, "relevant" evidence, a lower standard, could allow the Veteran to supplement the relevant evidence with additional evidence "if" the new evidence would not be enough for an award on its own, but would be with Veteran's additional

(for example) IMO.  

This attorney has a good summary of Emerson, Berta:

https://abkveteranslaw.com/blog/2016/8/27/38-cfr-3156c1-requires-reconsideration-even-if-va-has-already-granted-service-connection

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4 minutes ago, Berta said:

"EMERSON V. MCDONALD

"Emerson v. McDonald centered on effective dates when reopening a VA claim. Veterans are able to reopen VA claims if new and material evidence arises. Usually, these reopened claims’ effective date will be that of when new and material evidence is submitted, with one exception outlined in 38 § CFR 3.156(c): this states that the effective date for a claim reopened with service records not originally considered in the claim can go back to the date of the initial claim.

For example, let’s say a Vietnam combat veteran receives a diagnosis of Post-Traumatic Stress Disorder in 1980 and promptly files a VA disability claim, however, VA did not obtain service records proving that he was in combat in Vietnam. Now in 2018, the veteran requests a copy of his service records that do, in fact, show he was a Vietnam combat veteran. If the veteran still has a diagnosis of PTSD, he may submit these service records to reopen his PTSD VA claim with an effective date in 1980."

https://cck-law.com/news/10-court-of-appeals-for-veterans-claims-cases-all-veterans-should-know-1/

 

I was wrong when I said exceptions- this is the only EED exception-within 38 CFR 3.156.

And the above 10 CAVC cases are well worth taking the time to read.

 

So If I had a condition back in 2004  but I did not claim it until 2013 can I ask for EED for this condition?  It was the beginning of the disease, but I had no idea how bad it would get until 2008.  

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Yes, Berta, I did find Emerson troubling in that 38 CFR 3.156 B, (pending claim), was not included, but it only addressed 38 CFR 3.156 C (new service records).  

    This is troubling, because it should not matter WHAT evidence was missing from VA...either the service records, or records after service which substantiate the Veterans claim.  Both of these suggest the record was incomplete, probably because VA did not do a good job and obtain ALL the records, or, worse, deleted or shreded key evidence.  

    It gives Va incentives to go through our file and say..whoops, there is that nexus..now where is the delete key on this computer???  We dont want to have to award benefits, so deleting this probative exam is easier.  

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Shrekthetank1

You could if you filed a claim for it back in 2004 and reopen it with new & materiel evidence.

but if you never filed for it then there's nothing to reopen.

It's a possibility you can Reopen claim for EED back to 2013 With New and Materiel Evidence....... I think that's what your asking?

Edited by Buck52 (see edit history)
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7 hours ago, Buck52 said:

Shrekthetank1

You could if you filed a claim for it back in 2004 and reopen it with new & materiel evidence.

but if you never filed for it then there's nothing to reopen.

It's a possibility you can Reopen claim for EED back to 2013 With New and Materiel Evidence....... I think that's what your asking?

So this was a predischarge exam.  I assume this would not work?

status post right inguinal hernia repair (claimed as pain and numbness, status post right inguinal hernia repair) 0% Service Connected

Predischarge Exam

10/02/2004
hypertension 0% Service Connected

Predischarge Exam

10/02/2004
scars, status post lipoma excision, left arm 0% Service Connected

Predischarge Exam

10/02/2004
scars, status post lipoma excisions, right arm 0% Service Connected

Predischarge Exam

10/02/2004
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ShrektheTank1

Sorry I stand correct on your BBD (Benefits Delivery at Discharge)

Service members can file for disability compensation before they leave active duty. Service members can do so if they are within 180 days of separation and have a tentative separation date. There are two types of pre-discharge claims a service member can file;
 
BDD claim;
A BDD claim (Benefits Delivery at Discharge) can be filed by service members who meet the following criteria;
  • 90 to 180 days from separation.
  • will be able to attend all C&P exams before separation.
  • and are not claiming any disabilities that fall under the "pro-longed development" definition, which include claims based on the "undiagnosed Gulf War symptoms, radiation exposure, or claiming PTSD with out an in-service diagnosis.
If a service member qualifies under the BDD program, then they will be scheduled for all needed C&P exams at their nearest BDD facility before their separation date. Once the needed exams have been completed, their claims folder is then forwarded to either the Winston-Salem regional office (if they are separating from the military from an installation located in the eastern U.S., Europe, or Africa), or the Salt Lake City regional office (if they are separating from an installation located in the western U.S., or Pacific) for a decision.
 

Effective October 1, 2017:

All pre-discharge claims filed on or after October 1, 2017, will now be catorigized either as a pre-dicharge claim (BDD or Benefits Delivery at Discharge claim) or a Fully Developed Claim (FDC).

 

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