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Claim at BVA

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KC3

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I have a BVA hearing coming up in the near future and wanted to bring up this scenario.

As an alternate route my representative  instructed me to get an IMO tying in my claimed issues that are on appeal at BVA as secondary to a condition that was rated several years after my effective date for the original claims on appeal at BVA. All claimed conditions are actually well known symptoms that coincide with the rated condition. 

Will this affect a decision by a VLJ or affect an effective date if a grant is made or a remand is suggested?  

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1 hour ago, KC3 said:

Will this affect a decision by a VLJ or affect an effective date if a grant is made or a remand is suggested?  

Tricky and very hard but let me try to explain, typically the effective date is the later date between the date you filed your claim and the date the doctor diagnoses your condition as being related to your service or as least likely as not caused by or a result of your already service-connected disability as secondary. With that said, depending on what evidence is actually in your service records and treatment records the VA was/is supposed to review them and determine if your claim could be rated as direct, secondary and or aggravated.  

Without reviewing, seeing and knowing what is in your records we would only be speculating (guessing) and that would be unfair to you in my opinion. I would say that if you disagree with the effective date after your hearing and once the decision is made, you can continue your appeal to the CAVC and hire a lawyer. CAVC Appeals are free for veterans because of the EAJA Act (Equal Access to Justice Act). You would just have to find a lawyer to take your case.

 

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I agree with pacman.  There are certain circumstances when you can get an effective date earlier than when you applied such as:

A.  You got out of the service within a year of when you applied.  Lets say you got out in December of last year, and you applied this march.  You could get benefits back to the day after military service.  

B.  This was a claim for increase.  

C.  Laws changed which are more favorable to you, such as the Pact Act.  

While these laws were written in "VA ola" which mostly takes a Veterans lawyer to understand, you can read about the exceptions, here:

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

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