Effective Date?

[Bluntly]

Good evening to all after finally being awarded service connection with residuals of a TBI at the BVA on Jan. 13, 2023. Just waiting on the RO to implement, I was reading over the BVA decision and wanted to know if this should go back to my original claim date in 2009? I was originally denied due to them saying no records of an injury or in service event occurred. Then I’d reopened this claim in July of 2016:

“Based on the evidence of record, the Board finds that service connection for residuals of a TBI is warranted.First, the Board finds an in service event occurred as the Veteran’s STRs contain a diagnosis of TBI.”

Also the benefit of the doubt was ruled in my favor here…

Edited January 19 by Bluntly (see edit history)

[pacmanx1]

1 hour ago, Bluntly said:

“Based on the evidence of record, the Board finds that service connection for residuals of a TBI is warranted. First, the Board finds an in-service event occurred as the Veteran’s STRs contain a diagnosis of TBI.”

Now comes the good, the bad and the possible ugly. I say this because now your appeal goes back to the VARO, and they are to assign you your effective date and your rating percentage. The VARO is famous for screwing both the effective date and the rating percentage causing veterans to have to file a new supplement, or HLR, or Direct Review going back to the BVA.

If your appeal has been in continued pursuit then yes, your effective date should go back to 2009 but it is possible that the VA may try to only assign your effective date back to the date that you reopen your claim. Also, the VARO can screw up and low ball your rating percentage. Based on your post it seems that the BVA awarded you a direct service-connected grant and therefore should be granted back to your original claim. If you disagree with the VARO decision, then you will have to continue your appeal. Hope the best.

Edited January 19 by pacmanx1 (see edit history)

[Bluntly]

8 minutes ago, pacmanx1 said:

Now comes the good, the bad and the possible ugly. I say this because now your appeal goes back to the VARO, and they are to assign you your effective date and your rating percentage. The VARO is famous for screwing both the effective date and the rating percentage causing veterans to have to file a new supplement, or HLR, or Direct Review going back to the BVA.

If your appeal has been in continued pursuit then yes, your effective date should go back to 2009 but it is possible that the VA may try to only assign your effective date back to the date that you reopen your claim. Also, the VARO can screw up and low ball your rating percentage. Based on your post it seems that the BVA awarded you a direct service-connected grant and therefore should be granted back to your original claim. If you disagree with the VARO decision, then you will have to continue your appeal. Hope the best.

I really appreciate your input as I will BOLO for effective date & rating percentage. I’ll be sure to update back on this post once things get final.

[broncovet]

Based upon "just" what you posted, I agree that you "should" get an effective date back to the date you first applied because of 38 CFR 3.156 C.  

Quote

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

However, "in addition to" what Pacman just posted, there are at least 2 other ways that the VARO can get the wrong effective date, and you have to appeal it again.  

1.  Facts found.  You effective date is the later of the facts found or date of claim.  While this could establish the date of claim, we dont know the facts found.  The facts found is the date the doctor said you first became disabled.  And we dont know that.  You may be able to find it in your medical records.  

2. "New service records" vs "new evidence".  (38 cfr 3.156 a,b, and c) 

If VA considers this "SERVICE RECORDS" and not just "new evidence" there is a big difference in effective date.  If its SERVICE records, your effective date should go back to the date of claim but if its JUST new evidence, you may not get the effective date earlier than when you filed the new evidence, which could be 2016, according to your post.  

      There are  actually 2 other things that could affect your effective date, this time in your favor:

a.   If you applied within a year of exit from military service you could get a date even farther back, to your date of exit from service.  I dont know that, either.  

b.   If this is a claim FOR INCREASE, then you could benefit a year for that.  

Here are the regulations, which pretty much state what I just stated, above:  

https://www.law.cornell.edu/uscode/text/38/5110

      Most importantly, if you do get your decision, and you dispute the effective date for any of the reasons above, or even other reasons, you need to file a NOD within a year.  Probably sooner.  

 

[broncovet]

When you get your VARO implementation decision, if its any effective date other than 2009, then post the reasons and bases and we may be able to help you appeal this.  

This is a HUUUUUUGE DEAL FOR YOU.  The difference in retro (backpay, based on effective date) could mean $100,000 or even more, for you.  

On the 4 different SC's I have gotten EVERY SINGLE ONE had the wrong effective date, and I appealed them all and eventually won most of what I should have gotten.  

The VARO hopes they send you some money, and you will forget:

1.  To check the effective date and not appeal.  

2.  Be worried about a reduction and be afraid to appeal.  

3.  Not know how, and wont get help to appeal.  (or wait too long). 

     And, very often they are right.  The VA snares Veterans in these 3 traps, above very frequently.  

[Bluntly]

17 hours ago, broncovet said:

When you get your VARO implementation decision, if its any effective date other than 2009, then post the reasons and bases and we may be able to help you appeal this.  

This is a HUUUUUUGE DEAL FOR YOU.  The difference in retro (backpay, based on effective date) could mean $100,000 or even more, for you.  

On the 4 different SC's I have gotten EVERY SINGLE ONE had the wrong effective date, and I appealed them all and eventually won most of what I should have gotten.  

The VARO hopes they send you some money, and you will forget:

1.  To check the effective date and not appeal.  

2.  Be worried about a reduction and be afraid to appeal.  

3.  Not know how, and wont get help to appeal.  (or wait too long). 

     And, very often they are right.  The VA snares Veterans in these 3 traps, above very frequently.  

@broncovet I really appreciate all your insights as always and will do if any problem arises.

Edited January 20 by Bluntly (see edit history)

[Bluntly]

Good afternoon to all and here’s the lasted update smh just like y’all said. Checked vet.gov & e benefits which both said the same they lowballed me on the tbi at 0, and the effective date when I filed back in July 2016. Just gotta take some time to gather myself right now as this was a nice gut shot to me. 

[broncovet]

Dont count on ebenefits/va.gov.  Exception:  The letters section is usually correct.  Check to see if you can print a letter that says you are "x" percent or SMC.  

Otherwise you have to wait for the envelope.  Ebenefits is notoriously unreliable and not up to date.  

[pacmanx1]

A lot of veterans overlook 38 CFR 3.156(D) which I think is equally important and states: (D) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record.

3.2501 Supplemental claims.

Except as otherwise provided, a claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim (see § 3.1(p)(2)) by submitting in writing or electronically a complete application (see § 3.160(a)) on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending (see § 3.160(c)) or has become finally adjudicated (see § 3.160(d)). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the agency of original jurisdiction will issue a decision finding that there was insufficient evidence to re-adjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed (see 3.103(c)).

(a) New and relevant evidence. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard under § 3.156(a).

(1) Definition. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

[Bluntly]

Thanks a lot fellas and the Va haven’t heard the last of me yet. FYI for others who may not know you can now download your claims letter. So you wouldn’t have to wait for mail to arrive. Once it’s printed up then you can see it in the system before the mail arrives.

Edited January 21 by Bluntly (see edit history)

[broncovet]

That's news to me..I have no idea why VA waited until recently to allow Vets to print out their decision letter, if that is what this is.  It would appear so.  

[Bluntly]

After carefully reading over the RO decision I have a couple questions as to what it means.

“Your claim is still considered to be in appellate status and further processing will continue. You will receive notice of a decision on the remaining appeal issues at a later date.” 

“As noted below a non-compensable evaluation is being assinged based on the totality of the evidence, and pending an additional medical opinion. If an examination is needed, you will be notified of the date and time of the examination.”

Is my claim not yet closed or what? They said remaining appeal issues which I only had tbi to appeal. If it’s not over yet then why enter it in the system already if you’re waiting on a medical opinion?

Edited January 21 by Bluntly (see edit history)

[pacmanx1]

On 1/18/2023 at 5:48 PM, Bluntly said:

“As noted below a non-compensable evaluation is being assigned based on the totality of the evidence and pending an additional medical opinion. If an examination is needed, you will be notified of the date and time of the examination.”

It sounds like the VA plans to set up another medical examination. So, it appears that your claim is still somewhat pending. Keep in mind that the regional office is supposed to assign you an effective date and a rating percentage. What effective date did they assign for your 0%? I don't think anyone would know why the VA does anything, but this so far seems like they are going in the right direction. 

[Bluntly]

18 minutes ago, pacmanx1 said:

It sounds like the VA plans to set up another medical examination. So, it appears that your claim is still somewhat pending. Keep in mind that the regional office is supposed to assign you an effective date and a rating percentage. What effective date did they assign for your 0%? I don't think anyone would know why the VA does anything, but this so far seems like they are going in the right direction. 

I really appreciate your insight and thanks a lot for your input. My effective date is July 2016 which is the date I reopened the claim. That I feel is so wrong as the date of entitlement arose was in my STR that diagnosed me in June 2009. As always I’ll keep y’all updated on how everything finally turns out.

Edited January 21 by Bluntly (see edit history)

[pacmanx1]

25 minutes ago, Bluntly said:

My effective date is July 2016 which is the date I reopened the claim.

It appears that the VA is up to their old tricks. To kill two birds with one stone. First only granting an effective date back to when you reopened your claim and second to only award you a 0% rating. By assigning a 2016 effective date, they set themselves up to only awarding you a rating percentage back to that 2016 date. I would say let the award go through and get the percentage and then go for the correct effective date. Some may disagree but there are times when you (A veteran) have to be as slick as the VA. Not knowing what your rating percentage may be, it could really add up real fast especially once they correct your effective date. The VA plays this game all the time.

[Bluntly]

@pacmanx1 Also I have two 0 percent ratings that’s non compensable, tbi & tension headaches. I thought at the very least with those ratings I get 10 percent. And if granted that would have open me up for SMC S because of all my ratings.

Edited January 22 by Bluntly (see edit history)

[pacmanx1]

Quote

I thought at the very least with those ratings I get 10 percent. And if granted that would have open me up for SMC S because of all my ratings.

 

Then I should change my post to killing three birds with one stone.

The VA is also known for trying to lump-in headaches with a TBI rating, but they can be rated separately, or migraines rated secondary to a TBI rating.

Here is a BVA decision that proves it, it is not precedent, and you should not cite it, but it is just for your information. 

https://www.va.gov/vetapp22/Files3/22014233.txt

 

[Bluntly]

23 minutes ago, pacmanx1 said:

Then I should change my post to killing three birds with one stone.

Lol I hear you on that one and hopefully I’ll get the last laugh after this one is over with.

[pacmanx1]

6 minutes ago, Bluntly said:

Lol I hear you on that one and hopefully I’ll get the last laugh after this one is over with.

Yes, it may all work out in our favor. Waiting on a CAVC decision myself and only time will tell. At least I did get a good call from my lawyer that the VA attorney agreed with my requests for increased rating and EED for TDIU. 

 

[Bluntly]

Yes we will prevail and it’s going to work out in our favor. Just to add more confusion on my part this was open on the 19th and closed on the 20th. Now why would this pop up if I’m expecting no back pay lol just no rhyme or reason for the Va I tell you. By the way I had a local lawyer at first but was of no use at all so I got rid of her and went with DAV. This so called lawyer was a no show at my BVA hearing.

Edited January 22 by Bluntly (see edit history)

[pacmanx1]

Interesting very interesting. OK, this is a new one for me, you might want to try to call the 1 (800) 827-1000 Peggy number to see if they could explain this.