Better EEDS under 38 CFR 3.156 (c)

[Berta]

I posted this here minutes ago for someone but it deserves it won thread to be easier to find.

CONCLUSION OF LAW "The criteria are met for an earlier effective date of July 2, 1969, for the award of service connection for PTSD and related symptoms, including anxiety and depression. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156(c) (2005); 3.400 (2016)."

https://www.va.gov/vetapp17/Files8/1745093.txt

 

"Appellant represented by: Robert V. Chisholm, Attorney at Law"

The decision shows how important 38 CFR 3.156(c) can be, and in this case it involved lots of retro cash.

 

 

[Buck52]

Thanks Ms Berta

I can only imagine that when a Veteran has appeal his claim for EED    thats the biggie here  as long as a veteran has filed his claim   then appeals it again years later and has the evidence to show he should have been awarded way back , its certainly possible he will get a EED BACK DATED FOR YEARS  so the main thing is  to apply and appeal your claim after denails...thats the thing file for your benefits and apply the claim  and you can appeal or reopen years later  main thing here is file the claim.

[Buck52]

Question about 

§ 3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

Ok what about the evidence to use when asking for a BETTER EED or in my case they failed to apply the SMC S HOUSEBOUND when I was granted TDIU P&T for a single disability rated at 80%  back in Dec 10 2002.

although years later I filed another separate claim for PTSD AND WAS GRANTED THE SMC S  H.B. THEN  THAT WAS OCT 2015.   obviously the rater caught it and applied the SMC S H.B. due to my IU and a 70% rating for PTSD. THAT WAS A 100% PLUS 60% RATING WHICH MET THE SMC S CRITERIA.

SO WHAT EVIDENCE WOULD i USE IN ASKING THEM FOR THE SMC S THAT WAS NOT APPLIED TO MY TDIU P&T AWARD BACK IN DEC 10 2002?  

ALLI HAVE IS MY AWARD LETTERS  & RATING SHEETS all have these dates on them  Dec 10 2002....but SMC S WAS NOT CONCIDERE BACK THEN...AS I UNDERSTAND Howell vs Nicholson Rule  in March 2006.

is my TDIU P&T AWARD LETTER THE EVIDENCE I need to show  and they can go back and recheck it    

What I am not sure of  is   was I eligible for the SMC S H.B. back then? or do they go by the Howell rule in 2006?

what would be good evidence to prove my case  that they should have applied the SMC S H.B. BACK IN DEC 10 2002?

Edited May 22, 2021 by Buck52

[Mr cue]

Woo I am going to use this for my mental health remand that on it way back to bva.

I have service records from 1993 that spoke of my adjustment disorder.

I apply 2001 I was denied never appeal. Nothing about these records

2018 I apply and it was granted with the 2018 effective date.

On not one decision we're my service mental health records discuss. This might work

Buck u have the evidence I believe you have the rating decision grant tdiu based on one condition.

The va has the employment letters were we have to state we have not made income and are still unemployable. I believe this will show you been confine to your home.

And I feel Howell v nicholson is law.

I wouldn't over think it. If they go 2000 or 2006 they owe u

 

[broncovet]

3.156 C is "MATERIAL" service records.  "Material" suggests that (missing service records, now found) was a deal breaker, and now that you have it, you should be good to go.  

NOTE:  The term "material" has been changed in the last couple years.  Its now called new and "relevant" evidence.  "Relevant" is a lower bar to jump over than "material".  

Material Evidence:  Without this "material" evidence you would be denied.  

Relevant evidence:  Combining the evidence from service records "and also" maybe some new evidence that you provided later, such as doctors statements, would suffice.  

IMHO, this would be called a "liberalizing" regulation.  The evidentiary standard is reduced, in favor of the Veteran.  

    Vets "should" get the most favorable of the 2 regs:  The old, more strict reg, and the new "liberalizing" regulation.  

    However, see 38 CFR 3.114.   

Quote

§ 3.114 Change of law or Department of Veterans Affairs issue.

(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.

This could hurt your effective date.  

Edited May 22, 2021 by broncovet

[Buck52]

Well I believe I have the'' Relevant ''evidence in my award letter and reason and bases of the award that they sent me   they even state that due to my service connected disability I am housebound and they stated my disability is on Nature and not expected to improve within the Veterans life time and he has no exams schedule  he has a 90% combined rating  with one single rated at 80% due to his sc disabilty....so this letter along with my TDIU P&T AWARD LETTER  Showing how they did rate me and I granted me the TDIU P&T  THEY JUST FAILED TO INFER THE SMC S H.B. BACK THEN  DEC 10TH 2002.\send in as a historic audit Dec 10 2002   to when I did get the SMC S H.B.  Oct 15th 2015 and send a copy of that award letter too  for a 70% S.C. PTSD RATING. and use the 21-526 ez file supplemental claim for historic  audit(Back to Dec 10/2002)

Unless they have a particular form to use asking questions a historic Audit  to request the SMC S BE APPLIED and retro paid from Dec 10th 2002  to Oct 15th 2015  and just keep it there.  & move forward 

Edited May 22, 2021 by Buck52

[john999]

That is great!