Question regarding effective dates

[Whodat]

A thought came into my head and you great people on Hadit may know the answer to this. 

I had filed a claim for cervical or lumbar strain. I had filed a back condition in the past but I had never appealed the back claim. I do understand that if I did not appeal that claim, that I had lost my eed. 

I have never filed a claim for my neck. Let's just say that if my cervical or lumbar strain gets granted, since I never filed for my neck, will I get an eed for my neck?

Thanks all. 

[pacmanx1]

The bottom line is that in order to be eligible for an EED, you must have filed some type of claim, with that said; I would say take baby steps, first get your claim/claims service connected then look at trying to get an EED. Once service connected, it really depends on the evidence of records and what you can prove. Once your claim/claims are granted immediately file a disagreement requesting an EED. Your claim for an EED may very well be denied and you may have to appeal to the CAVC. If you can prove that your records meet one of the EED criteria, then it is possible, but this is pure speculation. 

Get familiar with Precedent Decision Clemons v Shinseki: 

“In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.” 

Clemons v Shinseki is way more than just mental health disorders - VA Disability Compensation Benefits Claims Research Forum - VA Disability Compensation Benefits Forums - HadIt.com Veterans. 

Also get familiar with 38 CFR 3.156 

§ 3.156 New evidence.

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

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

eCFR :: 38 CFR 3.156 -- New evidence.

 

[Whodat]

Thanks pacman. A little over my head. I do have a Lawyer from veterans law group on this appeal so I am sure that she knows how to tackle this beast. 

I was just curious.  

Thanks

[Whodat]

I guess what I was trying to ask was will it go back to the date when I had gotten out like my other serviced connected disabilities that I had did. 

[Vync]

@WhodatI would be interested in knowing this too. I would assume if you got out after Clemons v Shinseki was decided, you might be able to leverage that to your advantage. However, for someone like me who got out in the 90s, that decision did not exist and might not apply. Keep in mind I'm not a law expert, either...

I have never been a big fan of the way the VA handles effective dates. If a vet is sick, then they're sick. Let the medical evidence dictate that instead of relying on a requirement to fill out a certain form by a certain time.

Edited September 22, 2022 by Vync

[broncovet]

Pacman's explanation was great, and well researched! 

I will add my 2 cents worth:

Effective dates have 2 parts, "not just" the filing date.  Your effective date is the later of the "facts found" (the date the doc says you became disabled), or date of claim.  

However, there are many exceptions to the general effective date rule, I paraphrased above.  

A notable exception is one Pacman suggested.  Veterans are not required to be able to self diagnose their own disabilities with precision to obtain benefits.   We often dont know whats wrong with us, and sometimes the docs dont know either!  

"But also" there is an older regulation referred to as an "informal claim".  (These have not been permitted since about Feb. 2019, when claims have to be on the applicable form, prescribed by the Secretary).  

Still, a Veteran "may" have applied for an informal claim for increase.  And, a lawyer may be able to hold VA's "feet to the fire" and get an EED for an old informal claim, if its documented, such as with doctors notes.  

 

[Whodat]

Even if you had never filed a specific claim ever before but had a diagnosis and an event in service? It goes by the date that you had filed that claim? Now I have to find a nexus even though I had 2 out of the 3 directly after service.