Dates and more dates? for possible EED

[Buck52]

If the VA R.O. Makes errors in your Award letter and also in your EOB about your effective dates more than 3 times  with different dates , normally this would be called a flat out error and the veteran could possibly CUE them on these dates 

but how do they find the correct dates?

and also I was told that when VA Makes a TYPO error  this will be in the VA Favor  and the Vet loses.

In other words they have my EED down several times and all different dates so I don't know what the heck to do.

who decides what are the correct dates?

They have my DATES ALL SCREWED UP AND i AM TOTALLY LOST.

My reason I am onto this I was reading my CD Format C-FILE and found all these errors on my award dates   dating back to 2002/2003 and from what I found they shorted my retro by thousands.  but I need to know the correct date   to do anything  and I need proof.

Any body have any suggestions?

[broncovet]

Buck.   Your effective date "should be" the later of the date the doc said you became disabled or the date you filed the claim, but there are exceptions.  Its determined by the decision maker who decided your claim, in his/her absence, its determined by a "present" decision maker if/when you file CUE or other remedies.  There is "only 1 correct" effective date for each issue granted.  Another rating specialist, or a judge, can look at your file, and determine the correct effective date, as can many attorneys.  

 

You can read this to see if any exceptions apply to the "general rule" for effective dates I posted above.  The exceptions to the general rule involve: (read the regulation below, and check mark any you think pertains to you!

 

I suggest you read these over and see which applies to you:

Quote

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

 

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

• U.S. Code
• Notes

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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 the agency 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 of Veterans’ 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 Veterans and 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.

[Buck52]

Thanks GB Army  good advise for sure , thank you bronco

I only have 1 problem with this

I can't find my application as to when I first filed for the increase.??

I need that bad, but I do have a couple that have the wrong dates on them  going back to 1998 after I was denied   Yes I Appeal that decision and kept on Appeal until I got service connection at 0 % I appeal that and was awarded the 50% in 2000..I filed for increase on that too and this is when that VA C&P Dr decided to play God OR USE His power beng an ENT VA Dr.

Please understand this DRO Hearing I had  on May 7th 2003 was to save my 50% reduction proposal , so it was not Actually an Appeal  but a hearing dispute to rebut this VA ENT Dr  that mention my disability was not as bad as I claim  so this was not a denial....so there should be no timeline limits...but it seems I did keep up the Appeals timeline , they even have a Reopen claim I filed  but I do not remember filing a Reopen? maybe I did ??  or when I refiled for increase the time limit may have run out ,I need to check on this closer  but if I did file for increase maybe they treated it as a Reopen??

As soon as I can find out exactly how much retro I got back in 2003?  if it was short   I will Law Dog Up.

(I can't remember how much retro it was   it was direct deposited in my savings account at my Bank   my spouse seems to remember ...it was like 9.975.00 or close to that)

Note* I was told by a ''reliable  source''  that if any typo are made the VA Can correct those typo's  and I lose out completely.

Edited January 25, 2020 by Buck52

[Buck52]

If I law Dog up

I take my CD C-FILE TO HIM AND SOME OF THE PAPER WORK I GOT COPIED FROM MY C-FILE AND LET HIM KNOW ALL WHAT I KNOW  OR THINK...

AND LET HIM READ MY C-FILE...THIS MAY TAKE A WHILE  AND I DON'T MUCH THINK ANY ATTORNEY WOULD TAKE THE TIME TO READ MY C-FILE FOR FREE  JUST TO SEE IF I HAVE A CASE HE/SHE WOULD BE INTERESTED IN? 

I REALIZE THEY CAN SPEED READ BUT THIS IS VERY CONFUSING BECAUSE OF THE WAY THESE RECORDS WERE PUT IN MY C-FILE..AND SOME RECORDS ARE NOTHING BUT HEN SCRATCH  YOU CAN'T TIL WHAT THEY SAY  I HAVE OVER 4.000.00 PLUS PAGES IN MY C-FILE.

[broncovet]

Many/most Vets have the same problem.  Attorney's who represent Vets "have a few tricks up their sleeve."  

One possibility:  If its in a PDF, file, for example, they can do a search for stuff like, "at least as likely as not" because, it is important to know if they have a nexus. 

As I explained in the email, the lawyers NEED a steady stream of new Vet/claimants/clients, or they go out of business, just like a car dealer goes out of business without people who test drive and buy cars.  

Most of these lawyers dont bite.  So feel free to ask em questions.  Ask them, for example, "Gee my file is complicated...will you review it for eed for free"?

(Virtually all will say yes).  

With Vets lawyers (at least the ones on the NOVA site), they work "on contingency".  That is, they get 20 percent of the retro they recover for you.  They dont pay them extra to review our file, but they will need to do that.  

If you go to the NOVA site, the various lawyers "mostly" mention their area of expertise.  (in Veterans law).  Some dont want EED's.  Just call the ones who do.  They will be happy to "evaluate" your case, and decide if they will represent you.  Dont be upset if they say no...some probably will.  I have hired 3 lawyers so far, and probably been turned down by 10.  So about 1/3 will represent you.  Some wont because:

1.  I have been turned down because my case was "at the BVA" and they want to do CAVC only.  I cant blame them.  CAVC is fast and they can get paid in six months to a year.

2.  Others turn me down because that is not their specialty.  The just get good and familiar with "one type" of law.  Maybe they like PTSD, or MST.  (My least favorite).  Or, maybe they like CAVC...or EED, or, some specialize in things like getting IMO's, or maybe discharge upgrade.  Still others specialize in "elder law" or even widows benefits.  

You just need to keep looking till you get what works for you and the law firm.  

I suggest you try CCK law.  They are huge, can do smc...eed...maybe even all of it.  Just ask me.  

[Guest]

Of course I agree you need a very good attorney, also look for attorneys that are familiar with doing VA audits.  It has been so long I forgot most of what I used to know.  I think/thought that there is a process where you can get VA to do a payment audit.  If you have your CD-C File try to check each and every rating decision, one of the last pages should be a legacy page  which shows each rating decision and their effective dates.

[vetquest]

Buck52, if I recall right I believe Asknod told me that VBMS is in date order and not the mess that the VA gives us.  If this is correct a lawyer should be able to look at your case and decide pretty quickly what has transpired.  I would go that route and see what they can do for you.  As broncovet told you not all lawyers will accept your case but keep looking.  I talked to the offices of three and only one graced me with a reply but they won a six figure retro for me.