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