Effective Date listed as date of C and P Exam

[krooks]

Hello,

 

We submitted a claim in September 2018 for the following:

• Increased rating, Intervertebral disc syndrome
• Increased rating, Migraines
• Service connection, Irritable bowel syndrome
• Service connection, Sleep apnea
• 100% rating for individual unemployability

 

We were denied December 2018 and filed an appeal. The case was remanded in April 2020. My husband had his c and p exam on October 15, 2020 and we received a decision letter on November 10th. He was granted an increase from 0 to 50% for migraines and granted TDIU. The decision letter we received in the mail and our ebenefits letters states that the effective date is October 15, 2020. Shouldn't the effective date be the date we initially filed the claim? We have lawyers assisting us and are waiting on there response but we were wondering if anyone in this wonderful forum had experience with something similar?

 

Thank you. 

[AllTheWay]

Greetings  Krooks.

 

This is one of the subjects that I had asked earlier this week and Broncovet and others has done a great job explaining this.

If I am not mistaken, 15 oct is when he was granted the increase so therefore that is the effective date for his new rating.

Yes you should be getting backpay if you had that open claim since 2018.

[pacmanx1]

1 hour ago, krooks said:

We were denied December 2018 and filed an appeal. The case was remanded in April 2020. My husband had his c and p exam on October 15, 2020 and we received a decision letter on November 10th. He was granted an increase from 0 to 50% for migraines and granted TDIU. The decision letter we received in the mail and our ebenefits letters states that the effective date is October 15, 2020. Shouldn't the effective date be the date we initially filed the claim? We have lawyers assisting us and are waiting on there response but we were wondering if anyone in this wonderful forum had experience with something similar?

Yes, I believe you are correct, but you will have to file a new appeal to get your EED (EARLIER EFFECTIVE DATE).  My husband had his c and p exam on October 15, 2020 and we received a decision letter on November 10th. This is a typo correct. It is up to you what type of appeal you are going to file, but this is a common tactic of VA by assigning the effective date the day of a C & P exam. You will not believe how many veterans go through this same dilemma.  

Some veterans are so happy of being granted 100% and or TDIU they do not even think about the effective date or filing an appeal for the correct effective date.

 

[pacmanx1]

(h) Effective dates - (1) Continuously pursued claims. Except as otherwise provided by other provisions of this part, including § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in paragraph (c) of this section within one year of the issuance of the decision (or the time period specified in paragraph (f) of this section, as applicable to simultaneously contested claims), provided that any appeal to the U.S. Court of Appeals for Veterans Claims must be accepted as timely by that court.

(2) Supplemental claims received more than one year after notice of decision. 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 issues notice of a decision or the Board of Veterans' Appeals issued notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.

[84 FR 171, Jan. 18, 2019, as amended at 84 FR 4336, Feb. 15, 2019; 84 FR 54033, Oct. 9, 2019]

https://ecfr.io/Title-38/Section-3.2500

Edited November 6, 2020 by pacmanx1

[broncovet]

Your lawyer (has obviously read your file) while I have not read it.  On effective dates, the general rule is the later of the "facts found" or date of claim.

Therefore:

1.  Read the C and P exam.  When did that doc say your disability began? Or did he not give a date?  This establishes "facts found" because that means the date the doc said you were disabled.    However, rest assured.  YOU DID NOT GET DISBLED during the C and P exam, as this decision suggests!  In other words, this decision suggests you went to the C and P exam, hunkey dorey, and "poof", you come out of the exam and you are now unemployable, and had migraine headaches!  Gee, what did that examiner do to you, during an exam, to cause you to have migraines and be unemployable.  

2.  The examiner "should" have read your records, and determined a DATE.  Example:  The record shows the VEteran has had migraine headaches since an exam on mm-dd-yy done by Dr. P.    "When" the examiner fails to list a "start" date, the VA uses the exam date.  The exam date is never correct, as I said, because you did not get disabled at the c and p exam!  

3.  Importantly, effective date regulations are different for an increase, that is, they give you up to another year, that the VA often forgets about.  Here is the regulation, exactly:

Quote

(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.

 

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

Bottom line:  You will need to appeal the effective date, "AND" you may need an IMO opinion which "lists the date" your migraines/unemployablility

began.  Wild card:  Did you submit new evidence?  This should be 38 CFR 3.156: https://www.law.cornell.edu/cfr/text/38/3.156

This, also, could mean you deserve an earlier date.  

 

 

[deedub75]

They have been making a lot of mistakes with this lately. I had claims that I had been continuously pursuing since October 2010. I filed a supplemental claim in February 2020 with a nexus letter from my doctor. I was sent to new exam through a contractor instead of being sent back to the same examiner who had been incorrectly denying me. All of my claims were finally granted in March 2020 but instead of giving me my effective date back in October 2010, they made the effective date the date that I filed the supplemental claim in February 2020. Needless to say I was pissed. I was already 100% P&T and I was hoping to get a large backpay that I was due. I filed a higher level review at the end of March 2020 claiming I had been continually pursuing these claims since 2010. They realized that they had made a mistake and they corrected my dates netting me almost $30K in backpay. It took 10 years but I finally won.  

[GBArmy]

Deebub75 Congrats! Took 10 years but you didn't quit and why should you. Get all that you deserve man. It seems that EED's are almost automatic at being wrong, especially if it's a lot of $. I truly believe if a mistake is made on the date, the rater making the final review will look the other way. Thinks that the veteran will be so happy he or she finally won, that they will just drop it. And they are right; many will. That's wrong; way too many errors and they could improve the process if they wanted to. But, they don't. Hey, don't forget to share your good fortune a little with Hadit, if you can. We have to keep this thing going helping others.