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Question about Effective Date


paulstrgn
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Question

I received my decision on my HLR for hypertension and now I have some questions.

1st, in the decision there is a statement “An evaluation of O percent is assigned from July 26, 2014, one year prior to the date we received your claim which was continuously appealed.” This is one year before I filed my first claim. Should the effective date be July 26, 2014 or should it have been July 26, 2015 when I filed for hypertension?

I am asking because if this is the case should my original disabilities (40%) have also been July 26, 2014? If so is it to late to appeal it? I think yes but thought I would ask.

Also part of the original claim was for my OSA which was part of the hypertension appeal that was granted on July 2, 2019. The effective date given for OSA was July 26, 2015 for 30% and then 50% as of September 11, 2015. Should the effective dates also been in 2014 also?

Needless to say if this should have had an EED this would make for a nice retro pay for me.

 

My hypertension was granted from a BVA win on July 2, 2019. I originally filed on July 26, 2015. Should the VA have used a BP reading from my medical records to have rated my hypertension back to July 26, 2014 instead of giving me a 0 percent rating, my medical records would have least given me 10% back then. Or am I just out of luck?

Thanks for all the advice.

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Paul, I expect that others might disagree, but I would look at it this way. EED equals more $ than you have now. Kinda extra $, or "house" money if you will. I would give up a piece of that for a good lawyer who can structure a good legal position. If they take your case, then I would expect they, and therefore you, should have a good shot. If you don't have any big guns,  they are going to give you the brush off. It isn't as simple as one would think. IMO

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1 hour ago, paulstrgn said:

his is one year before I filed my first claim. Should the effective date be July 26, 2014 or should it have been July 26, 2015 when I filed for hypertension?

Paul it should be the date you filed the claim .. or the date you retired or left service which ever is most recent  I have also seen the va state in one of my claims , " the day of your first treatment"  

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If I remember I thought the VA had something to if you filed a FDC you got a year earlier for an effective date.  I don’t remember where I read that now.

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Have you tried to research Fenderson Stage Rating?  Fenderson v. West, 12 Vet.App. 119, 126 (1999).  It looks like that is what happened and I may be wrong and others may chime in.  It appears you filed a FDC in 2013 and 2015 and VA gave you the effective date one month prior to your completed 2015 FDC. Keep in mind that with FSR VA starts with a percentage and increase percentage as symptoms get worst/increase.   In this case VA started with 0% in 2014 and went up.

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Pete I filed my first VA claim on July 26, 2015 (I procrastinated for 20 years on filing for VA benefits) for hypertension, OSA, scoliosis, right hand problem, dermatitis, and foot problems. The hypertension and OSA was denied and everything else was approved with an effective date of July 26, 2015. I kept the two denied issues active until it approved by the BVA on July 2, 2019. When I filed back in July 26, 2015, I did file a FDC when the VA had a program which grants up to One Year Retroactive Benefits for Veterans Filing Fully Developed Claims to Help Reduce the Backlog. Here is the link https://www.va.gov/opa/pressrel/pressrelease.cfm?id=2464.

Because the VA had this program going when I originally filed is why the decision for hypertension gave the July 26, 2014 date. I am thinking that the VA should have done the same with the initial 40% and for the OSA claim that was granted by the BVA in 2019.

Now it has been less than a year since I received my ratings for OSA, but is it a CUE for the original 40%?

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It really depends on the evidence in your file. IMHO VA granted an effective date of 2014 for hypertension of 0% because they knew that with this rating there would be no retro pay. You would have to prove that your disabilities had met the rating criteria prior to your original claim.  Keep in mind that VA did pay you back to your original claim.  You would need some type of VA medical evidence that your effective date should get the one year earlier. (I say VA medical evidence because you can try to say that VAMC records had evidence of the conditions).  This claim would not be ripe for a CUE claim but if you feel you should get the extra year,  you could file an appeal because you are still within your one year of a decision.

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Your effective date is the later of the facts found (date doc said you were disabled) or the date of claim, with some exceptions.  

You can get an earlier date than when you applied in special circumstances:

1.  If you apply within a year of exit from service, you can get an effective date back to the date you exited from service.

2.  In some cases, Nehmer Vets can get an eed.

3.  Changes in regulations pertaining to your claim.  

 

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I guess is why I am confused is why the VA gave me an effective date on 7/23/2014 for hypertension which is one year prior to my very first claim. I retired in 1995.

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On 2/14/2020 at 7:11 PM, broncovet said:

Your effective date is the later of the facts found (date doc said you were disabled) or the date of claim, with some exceptions.  

You can get an earlier date than when you applied in special circumstances:

1.  If you apply within a year of exit from service, you can get an effective date back to the date you exited from service.

2.  In some cases, Nehmer Vets can get an eed.

3.  Changes in regulations pertaining to your claim. 

Don't forget! It's less common I suppose, but very effective!

M21-1 III.iv.5.C.3.g.  Correlation Between Effective Date for Primary and Secondary SC Disabilities

  • The effective date of benefits for the causal disability is guided by the date of receipt of the claim for the secondary disability.
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