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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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LightningFan75

Need advice on the best way to approach an appeal for effective dates

Question

I figured I'd start a new post since my original post in MST is a little old an now off topic since i was approved!!!

Merry Christmas Everyone!!!  and Happy Holidays for those who don't celebrate!!!

 

I had a Christmas miracle happen!  I logged into EB on the 26th and my rating went from 70% to 90%!!! They approved my PTSD at 70% and my shoulder that I've been fighting since forever at 20%. 

Now the bad news...the effective date of my PTSD was 12/13/2019 even though I submitted my supplemental on 6/13 and have been claiming mental health issues since 2017.  Also I first claimed my shoulder in 2017 and they denied my claim without a C&P exam even though I had a report of 2 accidents in my MR.

Can I appeal the date of my shoulder since I was never given a C&P and had to gather the evidence on my own? And can I appeal the date of my PTSD since the C&P exams I had from the beginning reported my statements in error?  The doctor from the very last exam I had (on the date of the rating 12/13) was wonderful and took the time to go through my past exams and listen to me very careful and set the record straight correcting all of the false statements the previous doctors made, and gave her own opinion based on our discussion coupled with the letter from my current VA MST therapist.  

See my very first claim of PTSD from 2017 has been in deferment until just a few days ago so technically shouldn't it be still be considered open?  So shouldn't I be able to request a back date all the way to the date of that first claim?

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LightningFan75

You need to get with broncovet  he is fighting his EED back to 2009.  or 2002  one of the two and possibly some more back dates.

He is fairly sure he will win them.

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Dont appeal the effective date "based on the VA failure to give you a c and p exam".  Instead. appeal the effective date for reasons that may win you an earlier effective date, because VA is "not required" to give you a c and p exam, in most cases.  (Its mostly up to the discretion of the rater, a c and p exam is generally not mandantory.)  

I will list a few "winners" of effective date appeals:

1.  Did you submit "new and material (or relevant) evidence while your claim was pending?  Read 38 CFR 3.156 B and 3.156 C carefully to see what applies to you, if anything.  

2.  Was this a claim for increase?  It sounds like it was.  This can yield you an extra year of effective dates.  Read:  38 CFR USC 5110 B (3): https://www.law.cornell.edu/uscode/text/38/5110   I actually won a years benefit on this regulation!  Its often overlooked by VA.  

3.  Did you have an earlier pending claim that VA did not adjuticate?  See the pending claim doctrine.  

     There are a lot more, but this is a great start.  

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If your claim was active, ie in appeal or deferred you should be able to appeal for an earlier effective date.  I too am appealing an earlier effective date on a SMC claim.  It is currently in an NOD under the legacy system and they are claiming that it can take two years.  Delay and delay some more.  If you get an NOD under the legacy system and you ask them to call you make sure you have all of your information ready for a call.  I am keeping it by my computer. 

Sometimes they do a rating and say that you were disabled as of the date of the rating not the date you filed, they tried that on one of my disabilities and the BVA overruled them.  They get away with it most of the time.  Good luck and keep fighting.

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It would take a review of your file to determine the best way to appeal an effective date.  However, if your doctor said you became disabled on mmddyy, then you almost never can overcome that, except with an IMO refuting that.  (Your effective date cant be earlier than the "facts found", that is, the date your doc said you were disabled.)  Its also limited by the date you applied.  But there are exceptions, such as if you applied within  a year of discharge.

Its complicated, and I recommend taking your file to a law firm specializing in effective dates.  Ask them if they see an eed.  Then you can decide whether to hire them or appeal it yourself.  

First steP?:  Wait for the envelope and get your cfile.  You never know with ebenefits.  

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I'm managing a claim of retroactive pay for a family member.  He was diagnosed with PTSD and has been in treatment since 2004 , clearly documented at the Vet Center but was denied benefits and has been repeatedly due to his OTH.     I have a form from VA (21-8947  that states in the header Date of Claim 12/20/04, End Product 290, Transaction  title 27L-DISA.    Bottom of the form states Compensation and Pension Award.    My VA person tells me that this is not a claim.   I'm trying to establish first claim date, there have been 3 in total.  First one being 12/20/04.  He was told that he needed to upgrade his discharge in order to qualify and the letter to the VA clearly states he is looking for healthcare and benefits.    Thoughts?  

 

Edited by sderoy
typo

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