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bva appeal says waiting for judge to be assigned


killemall
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Question

 

August 2013 some of my claims denied

July 2014 I reopened same denied claims and denied again

I did a nod in  June 2015 for the claims denied

Saw judge via video conference Dec 10th 2019

March 5th 2020 my status changed to waiting for judge to be assigned 

So now it's March 23 and it's still saying waiting for a judge to be assigned 

I know that even once a judge is assigned I could still wait a month or 2 on a decision...

 

But 2 quedtions....

 

HOW LONG DID IT TAKE YOU TO BE ASSIGHNED A JUDGE AFTER SEEING JUDGE LIVE OR ON VIDEO CONFERENCE?

WILL MY BACK PAY SHOULD I WIN BE BACK TO 2014 WHEN I REOPENED THE DENIED CLAIMS OR BACK TO 2013 WHEN I ORIGIONALLY WAS DENIED THE CLAIMS

 

thank you

 

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So mine which was legacy was almost 2 years.  I have heard under the new process it is much faster.  

as for the EED you look as if you did not let a year go by without going back at it, technically yes it should go back to the earliest date.  With that being said the RO will probably give you a C&P and go off of that date.  Sometimes the judge will see this and correct it.  Or you will have to put in another disagreement to get the date move back correctly.

Now once in a blue moon they do get it right the first time, but don't count on.  Keep fighting you got this!

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I agree with Shrek; it sure look like you have kept the string going. Now, when (not if, because we are positive) you get your award, don't wimp out and just take the disability and allow the EED to slip. Do the math: x months times the difference in your grant from old combined disability rating to the new one. If its a good piece of change, don't leave it on the table. They aren't going to try and reduce your new rating because you are making it hard for them. Its your money, Don't be afraid to get what you have coming.

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I will address the "backpay" question, but nobody really knows "when" the VA will adjuticate your claim, but, it has been moving much much faster most recently.  

I filed a Nod in Feb. 2019, and it was completed by Feb.2020.  

Your effective date will be the later of the facts found or date of claim. (see below) I can not be certain of either of those for you without reviewing your file.  However, if you succeed in "reopening" your PENDING CLAIM, then your "date of claim" should be when you first applied, that is 2013.  Read 38 CFR 3.156, which governs claims reopened with new evidence, here:  https://www.law.cornell.edu/cfr/text/38/3.156 

DATE OF CLAIM:  Judges use the term "continiously prosecuted claim".  In other words, you applied, it was denied, you appealed (or reopened) and it has kept your appeal "alive" since you first applied because you have kept on jumping through the hoops to preserve your effective date.  "jump through the hoops" means you timely filed a NOD, or got VA to reopen, and when denied again, you appealed timely again.  You also went to C and p exams that were ordered and you sent any additional information VA requested.  If you fail to attend a c and p exam or fail to give VA "requested evidence", then the VA assumes you have abandoned your claim and can be closed without a decision.  The VA does not always need to notify you, but they do sometimes, that your claim has been considered abandonded.  (withdrawn). 

To "continiously prosecute" your claim, you have to read letters VA sends you, and comply with their requests to the extent possible as well as meet all nod deadlines.   If they request records and you can not obtain them, then you need to inform VA that you want to continue your claim, but you can not obtain the requested records (and probaly give a good reason you cant get those records, such as a hosptial closure.) 

Based upon you "continiously prosecuting" your claim, I think your claim date should be 2013, but there could have been evidence the VA requested and its possible you did not attend to that, so I dont know if that happened or not. 

FACTS Found:  This means when the doctor said you were disabled.  If you went to a c and p exam, the doctor can opine "when" you were disabled, often by reviewing your records.  As an example the doctor can opine, "This Veteran has had arthritis present in xrays since 2002."   This is a fact found, determined by your doctor.  The problem comes when the doctor "does not give a date".  In this example, the doctor just helped you out, noting that you have had this a long time.  However, if the doctor does not mention a date, the VA often uses the DATE of the C and P exam as "facts found".   While I think this is hogwash, still that does not prevent VA from doing just that.  Coming back to this example, your 2020 c and p exam isnt the facts found because you were not "free of arthritis" prior to your c and p exam, but amazingly got arthritis one minute after you stepped our of the c and p exam.  No, you have had arthritis back to 2002, but your doctor did not bother to say that he could see it on your xrays back then, so you wind up losing decades of retro "unless" you appeal, and hire an IMO to state he reviewed your records, and your xrays showed arthritis in a 2002 exam, so you had arthritis at least 18 years.  

THERE ARE EXCEPTIONS to the general effective date rule above.    See them all here: https://www.law.cornell.edu/uscode/text/38/5110

Some notable exceptions are:

1.  New evidence.  See 38 cfr 3.156.

2.  Claim for increase.  It can go back as much as a year earlier if this is a claim for increase, depending upon facts found.  

3.  Applied within one year of exit from military service. 

 

 

Edited by broncovet
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And this is why I love hadit!!!!

 

Thank you so much!!!

 

 

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Thank you killemall.  I guess I assumed you were referring to my answer.  I spent considerable time on it, to try to give you an accurate description on effective dates.  I have appealed my effective dates at least 3 times, and I eventually won them all, tho not the way I thought I would win them.  Having gone through 18 years or appeals, I have learned a thing or two about effective dates.  

If you are working your effective date appeal yourself, I suggest you read this at least 5-10 times, to see if any of these apply to you.  

https://www.yumpu.com/en/document/read/36087001/common-va-effective-date-errors-military-order-of-the-purple-heart

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I was legacy appeals from 2014, I had my bva hearing with the judge on Dec 12th 2019, assigned to veteran law judge on March 10th, 2020, decision by March 12, 2020

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