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Early Effect Date / Video Judge

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KDM

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I am seeking an earlier effective date on my PTSD claim.

I was granted back to 2016 where i was diagnosed with PTSD but denied...  so  I reopened claim 2018 and was granted 100 percent going back to my first diagnosis and denial in 2016...denied an early effective date to 2002.

Going threw paper work I saw that I was diagnosed originally with PTSD by CNP Doctor in a favorable CNP for my claim for PTSD in 2002 but denied...so I again reopened it ( legacy claim doesn't apply ?)  and granted a Video hearing with a Judge I'm 2023 but the Video situation was canceled in Dec of 2023  by my service officer and now It's sitting in docket waiting for a review why would they cancel my Video hearing with Judge? What does it mean? Is something like this favorable for Veteran?

 

 

 

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Posted (edited)

My take on this, based solely on what you posted, is that you should win, with a caveat that an effective date has 2 parts, not one:

Your effective date is the LATER of:

1.  The date you applied. OR

2.  The facts found.  This means the date(s) YOUR doctor said you were "not only diagnosed" but you also had symptoms consistent with a higher rating.  

Thats the part IDONT KNOW. 

There is something called a Fenderson "staged" rating possible.   This happens when your symptoms increase over time.  So, its possible you get 30 percent from 2002-2006, then 70% from 2006-2010, etc., consistent with the facts in your case.  

WHAT you should do:

    Be prepared.  Have a list of your symptoms, and when the doc documented them, which you took directly out of your medical records, so you can answer questions relating to "the facts found", that is, quickly find the exam which documents criteria in the mental health:

Quote

General Rating Formula for Mental Disorders

  Rating
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 70
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30
Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 10
A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 0

Source: https://www.ecfr.gov/current/title-38/chapter-I/part-4/subpart-B/subject-group-ECFRfa64377db09ae97/section-4.130

Edited by broncovet
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53 minutes ago, KDM said:

What does it mean? Is something like this favorable for Veteran?

 

Yes, it is possible. Without reviewing your records, we can only guess and suggest that you contact your POA. As stated, it is possible, if your POA found new and pertinent evidence in your records or SMRs this could lead to an earlier effective date, and it could be possibly faster for a judge to review your case if the POA canceled your video hearing and switched to a Direct Review because video hearings are taking a lot and I do mean a lot longer. 

The Direct Review Appeals under the AMA was supposed to be around a year’s time, but they are running about three years and counting. Who knows how long a video hearing would take under the new AMA. COVID and The PACT ACT has really screwed up the timeline or timeframe. Contact your POA. 

 

Edited by pacmanx1
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1 hour ago, KDM said:

I am seeking an earlier effective date on my PTSD claim.

I was granted back to 2016 where i was diagnosed with PTSD but denied...  so  I reopened claim 2018 and was granted 100 percent going back to my first diagnosis and denial in 2016...denied an early effective date to 2002.

Going threw paper work I saw that I was diagnosed originally with PTSD by CNP Doctor in a favorable CNP for my claim for PTSD in 2002 but denied...so I again reopened it ( legacy claim doesn't apply ?)  and granted a Video hearing with a Judge I'm 2023 but the Video situation was canceled in Dec of 2023  by my service officer and now It's sitting in docket waiting for a review why would they cancel my Video hearing with Judge? What does it mean? Is something like this favorable for Veteran?

 

 

 

I agree with Bronco.  This is probably a good sign for you.  There was a recent CAFC decision on EED that bodes well for your case as you have presented it to us. Thomas v McDonough, CAFC 22-1504 of 3/27/24. I am attaching a copy of the decision.  This decision is only 5 days old.  But may have spurred the Clerk to get this one out the door to help relieve the backload.

I went through this from November 29, 2022 BVA Decision to a Remand from the CAVC on 10/26/2023.  The BVA slammed me into AMA and ignored my brief and motions.  The Clerk called me and seemed exasperated by my brief and motions.  She sounded old.  Was apparently working from home and insisted I change my browser to Google to get a hearing because she could not connect with me.  I had no problem connecting with the test and verification I could work with the BVA video site.  I think she wrote a decision for the Judge that the Judge regrets signing.

Your situation is probably different.  Your service Officer probably got the BVA clerk to agree to your appeal the way he saw it.  It is unlikely that he thru you under the bus because of your right to appeal to the CAVC and get a remand based on not getting the Legacy Hearing as applied for on the 10182 the way I did.  I had signed nothing to agree to a move to AMA and would not have agreed to AMA because it would have ignored my brief and motions as was done.

That is the only way your representative would agreed to AMA without getting your hearing as I see it.  Otherwise, he would have had to get your permission to drop the appeal because he had been convinced you did not have a case and were going to lose.

New in the mix of things, is a CAVC rule for a "conference" between the appellant attorney and the VA attorney.  It appears to me that may have filtered down to speeding things up by the BVA clerks being more receptive to your representative's position for a faster inevitable decision. 

I still do not have a BVA hearing date.  But I now have Chisholm, Chisholm & Kilpatrick (CCK) representing me before the BVA.  But another issue has come up.  SMC-T.

240324 CAFC 22-1504 Thomas v McDonough EED PTSD.pdf

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