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, 2023 by Bluntly

[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, 2023 by pacmanx1

[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, 2023 by Bluntly

[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.