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Guide on "Effective dates" and your backpay.


broncovet
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I get lots of questions on effective dates.  Please look here first, then ask questions, as they may be answered here.

GENERAL EFFECTIVE DATE RULE: Your effective date will be the later of the facts found or date of claim. (see below)

 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  (withdrawn).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.) 

 

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.  

REOPENED CLAIMS:    Read 38 CFR 3.156, which governs claims reopened with new evidence, here:  https://www.law.cornell.edu/cfr/text/38/3.156 

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. 

4.  Clear Error, CUE.  There is much on CUE, I wont go into that here.  I placed this last for a reason:  A cue claim has the most difficult "standard of review" for Veterans to win.  You forfeit the benefit of the doubt with Cue, and I normally dont recommend it, unless all of the above fails or does not apply.  Cue can be sought anytime, while to appeal means you appealed timely.  

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 Great information broncovet  also  if you created a hadit blog  this information needs to be put in your blog. 

its fine here too,   but veterans can read your blog anytime  as these post get covered up after a few days.

 

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I put this up, and probably will be adding to it from time to time.  Also, if you have won your effective date, or have some knowledge on winning effective date appeals, then post it here.

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