Two questions about EED

[Hucast21]

Hi all,

First question - I originally filed a claim for migraine headaches in 2016, which was denied and became final. I filed another claim for migraine headaches with other contentions in 2018 and currently have a BVA hearing in April. If I am granted service-connection for migraine headaches, can I argue for an EED of 2016?

Second question - Going back to my claim that I filed in 2018, I have an IME from a board-certified psychiatrist who opined that I have major depressive disorder going back to 2013 when I was still in service. If I am granted service-connection for MDD, can I argue for an EED of 2013?

Any help would be appreciated.

Thank you.

Edited February 1, 2021 by Hucast21

[pacmanx1]

The answer to both of your questions is yes. It depends on the evidence you have in your records will depends on if you win or not. When I won my EED back to 1998, I had VAMC medical records that proved I was being treated yet the VA denied my claim. The same thing in my 2005 claim but when my claim went to the CAVC they reviewed my entire record and remanded my claim back to BVA where they granted it. So, it is possible but without knowing what evidence you have in your file it is impossible to fully know. You as the veteran should know more than anyone. Don't give up the fight. In reference to your prior claims, your records will still have to prove that you met the criteria and had 1. An in-service accident and or incident or disease, 2. A current diagnosis, and 3. A nexus connecting 1. and 2. 

 

[Hucast21]

In the IME report under Finding and Conclusions, the board-certified psychiatrist wrote this:

“Subsequent to several years of unfettered migraine headaches, the veteran went on to develop severe depressive symptomatology due to the nature of these headaches, preventing him from functioning, socially or occupationally, as early as February 2013. I also opine that the veteran’s concomitant disease processes, migraine headaches and a depressive disorder, potentiated each other and/or directly related to his active duty service based on the findings I have documented in this report. Also, references are provided below revealing the strong correlation between migraine headaches and depression.”

He then spends almost two pages explaining how that I have total occupational and social impairment due to my migraine headaches and depression in greater detail.

Before the Findings and Conclusions, the psychiatrist went over my medical chronology starting when I was in active duty where I was diagnosed with migraine headaches and how many times I went to sick call. He also goes over my VA records pointing out episodes where I was hospitalized at a VAMC for suicidal thoughts because of severe migraines.

Also, I do have a current diagnosis of migraine headaches and depression from a VA neurologist and psychiatrist respectively.

Edited February 1, 2021 by Hucast21

[broncovet]

To determine your EED would require a review of your cfile.  However, you may be able to review it yourself and watch for the following:

Effective dates are complex, but the general rule is your effective date is the LATER of:

1.  Date of claim.  If you applied when "informal claims" were allowed, the criteria for your date of claim is greatly reduced.  

2.  Facts found.  This is generally the date the doc says you were disabled.  

    There are considerable exceptions (I counted 18 exceptions)  to the above effective date general rule, but some important ones often overlooked by VA, VSO's, and Veterans include:  

a.  If you applied for benefits within 1 year of exit from service, your date can go back to the date you got out of service.  

b.  If VA denied you because of lost service records, and found them, you can get an eed based on 38 CFR 3.156 C, or maybe 3.156 B, if you sent in new and relevant evidence.  

c.  Nehmer claimants have special rules which allow earlier dates.  To find out if you are eligible under Nehmer, you can contact NVLSP (for free):  https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit

d.  Changes in regulations can benefit the Veteran.  

e.  Claims for increase can result in an eed in some circumstances if facts found so warrant.  

      Since I dont know, what, if any of these apply to you, I can not give a definitave answer.  

Effective date regulations, explain this in more details:

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

Specifically, one of your issues is addressed here:

Quote

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

 

Edited February 1, 2021 by broncovet

[Hucast21]

6 hours ago, pacmanx1 said:

The answer to both of your questions is yes. It depends on the evidence you have in your records will depends on if you win or not. When I won my EED back to 1998, I had VAMC medical records that proved I was being treated yet the VA denied my claim. The same thing in my 2005 claim but when my claim went to the CAVC they reviewed my entire record and remanded my claim back to BVA where they granted it. So, it is possible but without knowing what evidence you have in your file it is impossible to fully know. You as the veteran should know more than anyone. Don't give up the fight. In reference to your prior claims, your records will still have to prove that you met the criteria and had 1. An in-service accident and or incident or disease, 2. A current diagnosis, and 3. A nexus connecting 1. and 2. 

 

Thanks pac for replying. I was hoping for you to answer since you’ve been through it yourself. 

The way the psychiatrist wrote the IME, his opinion is that I’ve had depression since 2013 while I was still active duty.

[Hucast21]

3 hours ago, broncovet said:

To determine your EED would require a review of your cfile.  However, you may be able to review it yourself and watch for the following:

Effective dates are complex, but the general rule is your effective date is the LATER of:

1.  Date of claim.  If you applied when "informal claims" were allowed, the criteria for your date of claim is greatly reduced.  

2.  Facts found.  This is generally the date the doc says you were disabled.  

    There are considerable exceptions (I counted 18 exceptions)  to the above effective date general rule, but some important ones often overlooked by VA, VSO's, and Veterans include:  

a.  If you applied for benefits within 1 year of exit from service, your date can go back to the date you got out of service.  

b.  If VA denied you because of lost service records, and found them, you can get an eed based on 38 CFR 3.156 C, or maybe 3.156 B, if you sent in new and relevant evidence.  

c.  Nehmer claimants have special rules which allow earlier dates.  To find out if you are eligible under Nehmer, you can contact NVLSP (for free):  https://www.nvlsp.org/what-we-do/class-actions/nehmer-agent-orange-lawsuit

d.  Changes in regulations can benefit the Veteran.  

e.  Claims for increase can result in an eed in some circumstances if facts found so warrant.  

      Since I dont know, what, if any of these apply to you, I can not give a definitave answer.  

Effective date regulations, explain this in more details:

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

Specifically, one of your issues is addressed here:

 

Seems like #2 applies to me going by the IME. Thanks for the info, I’ll go over it and see what else applies to me.