Nine Ways to An Earlier Effective Date


 

 The NVLSP, through the Purple Heart, has listed at least 9 ways to win an earlier effective date, here:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

 

For those who would like a summary, I have provided my interpretation but would always suggest you thoroughly study the case laws suggested.

Without further ado, here are my nine favorite ways to win more retro:

.

  1. Pending Claim.  Evidence received prior to end of appeal period.

    Citation: Meeks vs West:

    “The general rule for an original claim for benefits is that theeffective date is the date the VA receives the claim or the date that entitlement “arose”, whichever is later.””Determining the date entitlement arose may be difficult.””Most advocates are familiar with one situation which may result inan earlier effective date of benefits: A claim filed years ago wasnever adjudicated by VA and remains pending; the advocate sees thatthe claim is still pending and asks VA to adjudicate the claim.”Citation: Meeks v West (Fed Cir. 1999)

  2. 38 CFR 3.156 C New Service Records, which states:

    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.


    The “kicker” is that once the claim is reopened due to new service records, the Veteran is able to resubmit any new evidence.

    3 Failure of the VA to inform Veteran of time limits.  The NVLSP’s take on this is that the time limits the Veteran has (1 year to file a NOD, 60 days to file the I9) do not even start until the Veteran gets notice informing him of the applicable time limits.

    4. Informal/Inferred Claims can lead to an EED.  There are 3 elements the courts have required to qualify as an “informal claim”.   The informal claim must:

    a) “Show Intent” to seek one or more benefits.  There is a difference between “seeking benefits” and “seeking treatment” and your VA doc is likely going to assume the later unless you tell him other wise.

    b)  Be in writing.  Telling your doc something does no good unless he writes it down and puts it in your record.  Verbal “informal claims” dont cut it.

    c) The Veteran must “specify the benefit sought”.    However, remember, the Veteran is not competent to make a medical diagnosis, but he is competent to say, “My head hurts”.

     

    For the other 5 methods of winning an earlier effective date, keep reading Asknod.  

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14 Responses to Nine Ways to An Earlier Effective Date

  1. Rick says:

    I’m years lae and trying to make heads or tails of this VA stuff, but here’s my story. I was discharged in 05 was not informed of VA timeframe for filing claim(s) – don’t know how to prove it. Filed in 2009 and was denied – I got denial letter, yet didn’t get any request for information. 2013 I got smart when I found a copy of my medical records with a consent form from BAMC (San Antonio). This year 2014 they asked if I had new evidence. I simply highlighted all the evidence in my contentions list and submitted to VA. My 2013 Claim was pending etc. On E-benefits, when I read my claim status it said all of my contentions were classified as (reopen) or increase.

    What would my effective date be? It’s obvious that the information I submitted wasn’t in my file, because once I submitted the info here in 2014 – I started recieving appointments from QTC, and as of 5/29 recieved one for the VA med here in Houston.

    Two – I had to submit new evidence to the Nashville office, which is my home state, and the office that denied me, but my comp request has since been moved to Texas. What gives?

    I enjoyed reading this site. Information is still good!

  2. Joe feathers says:

    I have a complex question I hope can be answered here. It requires some telling first. In 1974, I was a 17 year old boy who joined the national guard and was sent to FLW, Missouri for basic training. On my second day at reception station, I was sexually assaulted by my senior drill instructor, who did so under force of great threat to my life and well being. No, I did not and could not tell and even if I had, I would have been just another liar wanting to go home. So i repressed the memory but after leaving basic and ait, I came home with what i now know was PTSD from the trauma. It ruined my life. I had 21 jobs in 15 years, could never work dealth with depression and alcoholism, nightmares, hypervigilance, became a hermit. Remember here, I was a national guardsman. i was told a hindred times I was not a veteran, had only 4 1/2 months of active duty time. I could not seek help from the VA. In 2010, the senior drill instructor who retired as a command sergeant major, confessed to army cid agents that he has sexually assaulted me. I was suddenly a service connected veteran and immediately sought help with my ptsd and for comp. I was rated 70% during my c+p exam and was given unemployability(WITH PERMANENT AND TOTAL) in march 2011. and was given an effective date of may 2010 despite my objections.

    I had previously filed for health beneifts in january 2010 and was refused, before being accepted in march 2010 after the confession. I filed a NOD regarding my effective date and sent a stack letters from friends and family who knew me both before and after basic training and saw the drastic change in me. I also included a page from my c+p exam where the doctor stated that there was no doubt that the trauma suffered in 1974 was the single cause of my trauma. i also sent a list from the social security admin. a list of jobs i had from 1974 thru 2010 and the pitiful amount of money I had made, all due to suffering with this. I requested an earlier and fair effective date of claim and did not specify what i was expecting. they going to retro me back to 1974? No, I know better that that.. Like I stated before, i was not considered a veteran until the criminal confessed. I never filed a claim because I was told it was useless. Do i even have a chance of an earlier effective date? They have had the nod since march 2012 and I have heard nothing back. Any advice would be greatly appreciated..

    • joeaveragevet says:

      Joe
      Do you have a chance? Sure you do!!! 38 CFR 3.156 C would appear to apply, but you would likely need to take your full C file to a NVLSP attorney for review. I dont know what is in your file, and the “smoking gun” could well be there, based on what you said. Get thee to a NVLSP lawyer, pronto, is my advice.

  3. KC says:

    Oh believe me, I’m not giving up. I haven’t even started yet. I guess what I am wondering is, since I reopened the condition by requesting an increase, doesn’t that on it’s face allow me to request an EED? btw… it was the VA that told me since I didnt NOD for an EED in 2006, that I am out of luck.

    • joeaveragevet says:

      If you reopen under 3.156 C, “new service records”…yes, it will allow you an eed. Read over CFR 3.156 to see if it applies to you. The VA often “buffalo’s” Vets into thinking they should “abandon all hope”. First, the VA employee who told you this may not know what he is talking about, second, the VA wont “back him up”, and, the VA “takes a position against the Veteran that is substantially unjustified” more than 60% of the time, according to Chief Justice of the Supreme Court, Roberts, here:

      http://www.veteranstoday.com/2010/02/25/chief-justice-startled-by-gov-errors-in-veterans-cases/

      • KC says:

        Thats another interesting point. I didn’t provide any new service records, or evidence. I simply added it to a claim for increase on hip and knees. They gave me a C&P for the scars, so I am just plain confused. Like I said these are all the same ugly sore scars from the same ugly accident on active duty in 1984. So since the vA allowed me to reopen the claim with nothing more than a note to dad asking for more allowance, I guess even if they say nope, 10% is all you are getting I can say ok, then make that 10% good for an EED to 1986 when I was finally discharged from both the hospital and the Navy?

  4. KC says:

    I am still baffled on this… I was discharged in 1986 after being hospitalized for 2 years and 14 subsequent surgerys to fix my legs. I wasn’t awarded scars until I requested an increase to the fracture residuals in 2006, and then I was awarded 10%(yep, 20 years I waited) well, I didn’t NOD for an EED and the year passed. I just now re-opened for an increase as I believe I meet the requirements for 5 “painful” scars, but I am being told no way Jose on even thinking about an EED. These scars didn’t “just appear” 30 years later. WTF? How could they not realize these scars have all been there since discharge and go back to that date?

    • joeaveragevet says:

      KC While not timely filing a NOD for an EED was certainly not the best thing to do, dont throw in the towel just yet, based solely on the advice “you were told”. Time after time I have seen Vets who “were told” by their VSO’s NOT to appeal, wind up appealing anyway and winning benefits. Unless the person “telling you” not to appeal was your third NVLSP lawyer (echoing the sentiments of the other two), then I would not give much weight to what he “told” you. Even then, as CC says, “Never give up”. Have your claim reviewed by an NVLSP lawyer, at a minimum, before you even think of giving up.

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