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EARLIER EFFECTIVE DATE


SANUSCG

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I put in a claim back in 2009, and it was denied, due to no diagnosis of the disease in service.  I didn't appeal or follow up on the claim.  In 2020 I found new "material evidence" for the disease during my service. The VA approved my claim, that was denied originally and granted me 20% disability for it.  Should by effective date of the claim be when I first claimed the disability back in 2009 and not 2020?  I put the claim in within 1 year of my separation of service.  Both the VA and the higher level reviewed denied the reopen claim.  

 

Let us suppose that you left the service on January 1, 1990, and applied for benefits. The VA, however, denied your claim. You did not appeal. Ten years later, however, military service records or military medical records were rediscovered, and you found out that there was evidence of your disability, so you decided to file a new claim on March 1, 2015.

If the VA agreed that this new medical evidence justified reopening your case, and you were awarded disability benefits this time, your effective date would be the first time you applied on January 1, 1990, and not when you filed your appeal.

You can see the importance of filing as soon as possible for disability benefits when you are either still serving or within a year after you have left the service. If you miss this filing deadline by even one day, it could cost you several months of disability benefits.

If you have any questions about your effective date in the situations above, contact a VA-accredited attorney. While Volunteer Service Organizations (VSO) can help in many situations that vets face, figuring out effective dates for VA benefits is probably better done by a VA-accredited attorney.

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This is the norm. What evidence exactly allowed you to re open the claim? Was it a government record not in the claims folder at the time the original decision was made?  If it was your only option would be to use 3.156C. Did you appeal the latest decision?

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In regards to effective dates, the date you filed is  "just one portion" of "the later of the date of claim or facts found."   We dont know what the facts found are, that is, we dont know when the doc said you first showed symptoms that equate to a rating of 20 percent.  

So, we can only answer "half" of your question.  

Next, there are 2 types of New evidence:

1.  "New Service records" (38 CFR. 3.156 C).  The new service records should give you the earlier effective date.  

2.  "New evidence".  38 CFR 3.156 B, is on a pending claim.  Under 3.156 b, the effective date is the later of the beginning of the appeal period or the date you submitted new evidence.  

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Sounds like these were records that the government had, but were not present during the original claim.  Then it is new and material evidence, and as noted under 38 CFR mentioned above, your original submission date in 1990 should be the date of the award.

 

"(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim."

 

Note that if the records were from a civilian Dr, this would not apply. Only records that were in the custody of the US Govt at the time of the original claim can get your effective date corrected.

Edited by pwrslm
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On 12/29/2021 at 2:52 PM, jbasser said:

This is the norm. What evidence exactly allowed you to re open the claim? Was it a government record not in the claims folder at the time the original decision was made?  If it was your only option would be to use 3.156C. Did you appeal the latest decision?

Yes, correct.  I found an actual medical record that I was diagnosed with the disease that was not with the original claim.  It was a government document / STR.  I have not appealed the decision as of yet.  The higher level decision, also denied it, don't know why, they didn't discuss that with me, for some reason. 

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Posted (edited)

"HLR" is VA speak for "no new evidence".  HLR is not the correct way to appeal when seeking an EED "with new evidence".  HLR specifically EXCLUDES new evidence. 

 

Better is skip HLR and go to the BVA...and submit your new, relevant evidence.  

The instructions on the HLR form explains it:

Quote

IMPORTANT: Please read the information below carefully to help you complete this form accurately. Some parts of the form also contain notes or specific instructions for completing that section. USE THIS FORM TO REQUEST A HIGHER-LEVEL REVIEW OF A DECISION YOU RECEIVED. A Higher-Level Review is a new review of an issue(s) previously decided by the Department of Veterans Affairs (VA) based on the evidence of record at the time VA issued notice of the prior decision. The Higher-Level Reviewer will not consider any evidence received after the notification date of the prior decision. A Higher-Level Review may not be requested for the review of a HigherLevel Review decision or a Board of Veterans' Appeals decision. This form must be submitted to VA WITHIN ONE YEAR OF THE DATE VA PROVIDED NOTICE OF OUR DECISION. For additional information on the Higher-Level Review process or a list of review options that allow VA to consider new evidence and how to file, visit www.va.gov/decision-reviews/.

Bottom line:  

NEVER, EVER use HLR when you need to submit new evidence.  

My advice is to either:

1.  File a supplemental claim "with new evidence" or

2.  File an appeal to the BVA "with new evidence".

Edited by broncovet
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