effective date Tinnitus

[Michael420]

On 09/25/2013 I submitted a claim for tinnitus. Received a  VA letter dated 06/09/2014 informed me that the VA could not find my complete service treatment records could not be located and therefore unavailable for review. all efforts to obtain Has been exhausted based on these facts the VA determined that further attempts to obtain these records would be unsuccessful if these records are received at a later date the decision will be reconsidered. if a different decision results,  that decision will be effective the date of this pending claim. (09/25/2013) Well I was denied for tinnitus. So on 06/29/2016 I submitted a new claim  For tinnitus Evidence on record Shows they used my service treatment records. Subsequently I was Granted service connection at 10% effective  date May 11, 2016.  So by them saying that the effective date of this pending claim on September 25, 2013 should they go back to 2013 for my backpay instead of May 11, 2016.  Am I reading this right is that correct all answers will be helpful thank you very much

Edited October 17, 2020 by Michael420

[brokensoldier244th]

If that is the effective date they gave you, yes. But that 10% isn't always going to be enough to result in a change in rating that equals compensation. For example, I won my tinnitus claim years ago when I was rated 60, but overall it didn't raise my rating enough to go to 70 percent, so even though I won my claim it didnt result in more money. VA math isn't hard, its just not 10% + 10% = 20 percent. Their math is the same as insurance companies. You are 100% able and whole, you get rated 10%. You are now 90% whole. hen you get rated 20% for something. The next rating comes off the 90%, it isn't added to the 10%. 

 

100%- 10% = 90%. 

20% of 90 = 18, so now you are 28%. That rounds to 30%. So, lucky, you'll get a bump in compensation. 

 

However, consider mine

 

100% - 60 % = 40%

40% * 10* = 4

Im now 64%. Not enough to round up. 

 

 

 

[Michael420]

53 minutes ago, brokensoldier244th said:

If that is the effective date they gave you, yes. But that 10% isn't always going to be enough to result in a change in rating that equals compensation. For example, I won my tinnitus claim years ago when I was rated 60, but overall it didn't raise my rating enough to go to 70 percent, so even though I won my claim it didnt result in more money. VA math isn't hard, its just not 10% + 10% = 20 percent. Their math is the same as insurance companies. You are 100% able and whole, you get rated 10%. You are now 90% whole. hen you get rated 20% for something. The next rating comes off the 90%, it isn't added to the 10%. 

 

100%- 10% = 90%. 

20% of 90 = 18, so now you are 28%. That rounds to 30%. So, lucky, you'll get a bump in compensation. 

 

However, consider mine

 

100% - 60 % = 40%

40% * 10* = 4

Im now 64%. Not enough to round up. 

 

 

 

What I’m asking is which effective date the VA should of used. The one on 09/25/2013. Where I was denied tinnitus and the decision letter stated they could not find my service treatment records. And if they were found at a later date. the decision will be reconsidered, if a different decision results,  that decision will be effective  the date of this pending ( on 09/25/13 ) claim. So the new claim I submitted on 06/29/16. Where I was granted service connection for tinnitus at 10%.  where evidence shows they used my Service treatment records. That effective date is 05/11/16.
So on my claim on 09/25/13.  by the VA stating that if the records are received  at a later, date, if a different decision results,  that decision will be effective the date of this pending claim.  So should my effective date be September 25, 2013 or May 11, 2016 .  if The effective date is September 25, 2013 and not May 11, 2016.  I should be entitled to more backpay for those years and months 

thank you USNVET my ratings are 90% total combined disability with 100% TDIU P&T

70% MDD, 20% right shoulder, 20% (secondary) left shoulder, 10% dermatitis, 10% tinnitus, 0% scar, and SMS-K  

[brokensoldier244th]

Did you appeal the original decision? If you did not, within a year under the old appeals system that started in 2019, then you lost your earlier effective date. You could appeal on the basis of the missing records but M21 only requires 2 attempts and a 'negative' response from the service agencies in order for duty to assist to be satisfied (CFR 38 3.159). Under the new system you don't have an appeal cut off after a year to file a supplemental claim (appeal). You can still opt for the old system of appeal filing, I think, but then you fall back onto not filing within a year. 

 

[Michael420]

56 minutes ago, brokensoldier244th said:

Did you appeal the original decision? If you did not, within a year under the old appeals system that started in 2019, then you lost your earlier effective date. You could appeal on the basis of the missing records but M21 only requires 2 attempts and a 'negative' response from the service agencies in order for duty to assist to be satisfied (CFR 38 3.159). Under the new system you don't have an appeal cut off after a year to file a supplemental claim (appeal). You can still opt for the old system of appeal filing, I think, but then you fall back onto not filing within a year. 

 

No I didn’t appeal it but in my decision letter it specifically says if the records are received that a later date the decision will be reconsidered if a different decision results the decision will be affected the date of this pending claim. I did not see any timeline or nothing it just says it will be reconsidered if the records found we didn’t get the records till 2016 so what’s M21.  And what is my best option what form I sent a question to Iris I’m waiting on that

[Michael420]

Just now, Michael420 said:

No I didn’t appeal it but in my decision letter it specifically says if the records are received that a later date the decision will be reconsidered if a different decision results the decision will be affected the date of this pending claim. I did not see any timeline or nothing it just says it will be reconsidered if the records found we didn’t get the records till 2016 so what’s M21.  And what is my best option what form I sent a question to Iris I’m waiting on that

Also the decision of the letter does not state no timeline on an appeal it just states when records are found decision will be reconsidered and the effective date will be this claim date. so when I put in another claim in 2016 it was approved for tinnitus at 10% In the evidence part it showed that all my treatment records was there. 

[broncovet]

Your answer should be found in 38 CFR 3.156 (C) "New Service Records".  Yes, its my opinion you should get the 2013 effective date but that makes 2 assumptions which may or may not be correct:

Assumption number 1.  You applied in 2013.

Assumption nuber 2.  The medical evidence supported that you were "diagnosed with" and had a nexus supporting service connection for tinnitus.  

     Assuming the above 2 are correct, then I agree your effective date should be 2013, but I do agree with broken soldier an increase of an additional 10 percent "may or may not" increase your compensation.  

      Source:  38 CFR 3.156 C
 

Quote

c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.