Should I appeal the effective date? If so, how?

[mb76]

I had a reexamination where my percentage was increased but my medical records showed that my condition was deteriorated years before. My effective date was the date of decision. Can I appeal? Should I appeal? How do I do it?

[Ddsr]

You can appeal if you believe that your claim was not dated correctly. I will also show the choices. 

On Feb. 19, 2019, VA implemented the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), transforming a historically complex appeals process into one that is simple, timely, and offers Veterans choice and control.

If you disagree with an initial claim decision you received after Feb. 19, 2019, you can now choose from one of three lanes to have the decision reviewed: (1) higher-level review (2) supplemental claim, or (3) appeal to the Board of Veterans’ Appeals (Board).

What are the three lanes?

• Choose the higher-level review option if you don’t want to submit new evidence, but you think a mistake was made. A senior claims adjudicator will review your claim in an average of 125 days.
• Choose the supplemental claim option if you want to submit new and relevant evidence. VA will assist you in gathering the evidence you identify. This option will take an average of 125 days.
• Choose the Board appeal option if you want the Board to review your case.

Appealing to the Board

If you appeal to the Board, you will then choose one of three dockets: (1) direct review, (2) evidence submission, or (3) hearing request.

• Choose the direct review option if you don’t want to submit new evidence or have a hearing. The Board will review only the evidence the local VA office considered. The Board will complete these cases in an average of 365 days.
• Choose the evidence submission option if you want to submit additional evidence, but you don’t want a hearing. The Board will review the evidence the local VA office considered and any additional evidence that you submit within 90 days after VA’s receipt of your notice of disagreement. This option will take longer than one year.
• Choose the hearing request option if you want a hearing with a Veterans Law Judge. After the hearing, the Veterans Law Judge will review the evidence the local VA office considered, as well as your hearing testimony and any additional evidence you submit the day of or within 90 days after your hearing. This option will take longer than one year. https://www.blogs.va.gov/.../appeals-modernization.../

   

[pacmanx1]

4 hours ago, mb76 said:

I had a reexamination where my percentage was increased but my medical records showed that my condition was deteriorated years before. My effective date was the date of decision. Can I appeal? Should I appeal? How do I do it?

Can you please explain?

Quote

I had a reexamination where my percentage was increased but my medical records showed that my condition was deteriorated years before.

 And? 

Quote

My effective date was the date of decision.

Maybe my brain is off today or maybe it is the way it reads to me. How close or how far away are your medical symptoms records from your decision? When your symptoms increased, did you file a claim at that time?

[broncovet]

Yes.  Appeal your effective date to the board.  (I suggest skipping HLR or SCL, above).  Use the form found in your decision envelope.  It should be the current form.  

ONE reason: When you apply for an increase you should get an extra year (often overlooked by VA).  You may even get it earlier, depending upon your circumstances.  

 

(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

 

 

[pacmanx1]

The reason that I posted a question to this post is because the OP (Original Poster) stated that

Quote

" his condition was deteriorated years before."

Not a year but years meaning more than one and this could cause his/her effective date to be correct. Not saying that it is but before the veteran goes down that road a little clarity would be nice. Keep in mind depending on when all this was going on the veteran should have filed a claim at that time and not years later. 

(3)

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 issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

 

38 U.S. Code § 5110 - Effective dates of awards | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)

Edited July 11, 2021 by pacmanx1

[broncovet]

Pacman:

   I acknowledge the effective date "could" be correct.  However, in each of my effective dates, my appeals were eventually granted, so each was wrong, altho my entitlement theory was wrong, according to the BVA.  They awarded an EED for reasons "other" than the entitlement theories I presented to the Board.    While this is too small of a sample size to draw conclusions, a thorough review of mb76's file would be needed to conclude that seeking an EED would be fruitless. 

   Instead, I rely upon the OP who knows MUCH MUCH more about his claim than I ever will.  I say the odds are good, in the Vets favor, when they feel the effective date is wrong that they should persue that to the fullest extent, often needing a lawyer to "bring home the bacon" for an EED.  

Edited July 11, 2021 by broncovet

[pacmanx1]

Bronco:

The good thing about hadit.com is that when a veteran posts a question, he/she will get different responses. I do agree that the VA can assign a veteran an incorrect effective date and I don’t think I disagreed with any responses in this thread but what I did was ask for more information. Asking for more information IMHO would greatly help the veteran understand his/her situation. As you know and many others on this board that the VA has screwed up my effective dates like yours and many others, but it is totally different in each case and based on the OP stating that his/her condition deteriorated years before makes me think that he/she should give this board more information and go from there. Yes, the veteran knows more about his/her claim, and it would be simple just to post it, just saying file for a correct effective date is not right. We don’t know if the veteran has a valid claim for an EED or not, but we may be more familiar with the 38 CFR that can help explain to the veteran if he/she does have a valid EED claim. We should be given the veteran the most accurate information as possible, so asking for more information about his/her claim won’t hurt but telling the veteran to file and ask the VA for an EED that may not exist is not right in my opinion.