3.156 (c) earlier effective date for secondary

[add55p]

Hello all,

1. If BVA awards a claim effective date back to the original date of claim based on 3.156 (c) (newly associated service treatment records), would the original claim be considered a pending claim until the BVA´s new decision, since it did go all the way back to the original claim?

2. If a secondary condition was initially awarded the same effective date as the primary condition (before the appeal award for an earlier effective date based on 3.156 (c)), will the recent BVA EED award also allow for an earlier effective date for the secondary condition?

Summary: 1. initial claim for shoulder condition denied, I did not appeal and it became final.  2. Submitted claim to reopen and granted service connection shoulder condition and rotator cuff as secondary based on VA C&P examination (I never submitted a claim for the secondary condition).  VA assigned the date to reopen as the effective dates for both the primary and secondary conditions.

I am still waiting for the BVA and the RO decision letters, and would like to gather as much information as possible to determine if I should submit an appeal for an earlier effective date for the secondary condition.

Thank you..

Add

[pacmanx1]

2 hours ago, add55p said:

I am still waiting for the BVA and the RO decision letters, and would like to gather as much information as possible to determine if I should submit an appeal for an earlier effective date for the secondary condition.

IMHO (IN MY HUMBLE OPINION), I think you should wait until you get your decision letters. You are basically waiting on two separate decisions/letters, one from the BVA and one from the VARO implementing the BVA order. Unfortunately, any opinion prior to receiving these decision letters will just be guessing and mean absolutely nothing and there are too many variables that could happen. 

 Just my opinion but they could go into any direction. Just keep in mind that once the BVA makes their decision, if you disagree with how the VARO implement that/those decision(s), then you will have to file a new appeal sending your claim(s) back to the BVA. If you disagree with the BVA decision, then you will have to file an appeal to the CAVC, and it would be time to get a lawyer.

[blahsaysme2u]

OP- i have a thread on EED going as we speak and Pac recommendation here is what i am doing with my OSA claim that i won at the VBA. 

once you get your letter it might help. 

congrats on winning your claim though!

[blahsaysme2u]

any update? just following up since i was away so long. hows things going for you?

[Stayfocus]

On 6/3/2021 at 10:23 PM, add55p said:

Hello all,

1. If BVA awards a claim effective date back to the original date of claim based on 3.156 (c) (newly associated service treatment records), would the original claim be considered a pending claim until the BVA´s new decision, since it did go all the way back to the original claim?

2. If a secondary condition was initially awarded the same effective date as the primary condition (before the appeal award for an earlier effective date based on 3.156 (c)), will the recent BVA EED award also allow for an earlier effective date for the secondary condition?

Summary: 1. initial claim for shoulder condition denied, I did not appeal and it became final.  2. Submitted claim to reopen and granted service connection shoulder condition and rotator cuff as secondary based on VA C&P examination (I never submitted a claim for the secondary condition).  VA assigned the date to reopen as the effective dates for both the primary and secondary conditions.

I am still waiting for the BVA and the RO decision letters, and would like to gather as much information as possible to determine if I should submit an appeal for an earlier effective date for the secondary condition.

Thank you..

Add

EED retro goes back to original claim denial.

[tazntaylr]

Good day,

Sounds like my issue.

BVA granted:

1. 3.156 (c) used to grant service connection to original claim date of April 2000.

2. Increased rating to 20% from second claim filing of May 2017.

BVA remanded:

1. VARO to determine Disability rating is warranted to April 2000.

BVA decision was Nov 1, 2023. Waiting on VARO decision.

[broncovet]

The general rule for effective dates applies:

Your effective date is the later of the facts found, (the date the doc said you became disabled) or the 

claim date.  

1.  Therefore, your effective date will still be the later of the above:  The original date of claim, or 

the facts found.  38 CFR 3.156 (C) is a reopening of a claim due to new and relevant service records. 

While your effective date COULD be as early as the original date of claim, its still limited by the facts found.  

We dont know when the doc said you were disabled, you will have to check your records for that information. 

2.  Ditto for the increased rating, same as above. 

REMANDS:  

    Whever there is a remand, the Veteran has a right to submit new, relevant evidence to support his claim. 

Since a remand is a pending claim, until adjudicated, the effective date(s) will be based on 38cfr 3.156. 

As above, if awarded, the effective date would be the later of the facts found, or the claim date.  (Since its a pending claim, 

you could get an effective date as early as your original date of claim, but, again, this will be limited by the facts found.