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Earlier Effective Date question


McRay

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I was granted SC from a claim I filed in 2015. I currently have an appeal at the BVA for an increased rating and an earlier effective date. My question is if I win my appeal and am granted an EED of 1978 and increased % that would give me either 100% schedular or 70% and TDIU how would that work? It seems that some SMR's were not considered in my original denial in 1978 and were instrumental in overturning the denial in 2016 . The appeal legal brief is requesting a total rating of 100% or 70% and TDIU as of September 2015 and EED of 1978. Would the 1978 EED be computed at my current rate or would it be the increased rate?

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25 minutes ago, McRay said:

Would the 1978 EED be computed at my current rate or would it be the increased rate?

No, any and all back pay or retro pay is subject to the laws at that time including the amount of your entitlement. In plain language, if the BVA grants you an effective date, whatever the amount of the compensation rate at that time is what you will get. Plus, you would get an increase for each year that the VA increased the COLA.

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Thanks for the reply, but my question is would the EED be at my current rate or if I win the appeal and get a higher rating, would that be the percentage back to 1978? I'm aware that 50% in 1978 was substantially less than than 50% today.

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That really depends on the evidence of your records. If, VA failed to adjudicate all the evidence in your records and denied your claim that means the VA will have to re-evaluate your rating. In plain language the VA is going to have to relook at your evidence. The VA could decide to give you a 50% rating or the VA can do what they call a Fenderson Rating in which they will start you out at a lower rating and then increase it until they get to your current rating, or the VA could grant you a higher rating for the entire time. Too many variables to try to figure out to make a guess on.

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