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Question On Effective Date


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13 replies to this topic

#1 Gardener

 
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Posted 23 June 2010 - 05:25 PM

I posted the other day that I was still waiting for my favorable portion of the BVA decision. This decision was "stuck" at the AMC with other remanded issues. I just spoke with someone at the 800 number and was informed that a new entry was posted with today's date (23rd), and that it was now at authroization.

I wanted to ask a question concerning the effective date (obviously jumping the gun, but curious none-the-less).

All little background. I originally filed for service connection in 2003. I was notified in 2006 that I had been granted service connection (at the % that made me eligible to file for TDIU), and this was made retro back to 2003. Then, after receiving this favorable decision I filed for TDIU (3 weeks later). I became unemployable in 2000 (by SSDI) solely due to this condition (medical documentation from doc was a part of my file when I filed in 2003 stating that I was no longer employable), but VA only granted 70%. Anyway, I wanted to ask what my effective date would be?

Would it go back to 2003? (since I was not notified of the favorable decision making me eligible to apply for TDIU until 3 years later: remember it was retroed back to 2003). Or, could it possibly go back to the date placed on SSDI solely due to the same condition due to the documentation from doc that was part of the file at the time of the original filing?

I am concerned that they will only go by the date on the IU claim form of 2006, but I could not have filed until I received the decision giving me the necessary % (original claim was for service connection).

Sorry for the long post, but any input would be appreciated

Gardener





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#2 stillhere

 
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Posted 24 June 2010 - 10:06 AM

You filed for and was granted SSDI in 2000 but you did not file for VA SC until 2003. Why?

If a claim has not been filed then the VA has no obligation to pay comp because they have no idea that you want to claim.

Now if when you filed for SC in 03 you were already SC for something else and mentioned IU (even though you did not have the %) you might have a shot at getting a start date of 03 but because you waited until 06 when you were finally awarded 70% and met the %. The VA I would think will only grant your claim back to the date it was filed which would be 06.

That being said this is only my opinion but I think you are hoping beyond hope on getting the 2000 date when there was not even a claim filed. You might get 03 but that to is going to be a reach if you did not mention that you were unemployed at the time. If you did THEN you could get 03 but that is going to be your best I think.

Good luck though and let us know how it pans out!?

#3 pete992

 
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Posted 24 June 2010 - 10:19 AM

Wow, I think if you filed a claim in 2003 and informed VA that you were unemployed and or awarded SSDI, then your retro should go back to 2000. Your post stated that you filed in 2003 and VA finally awarded your claims in 2006. Did VA request your SSA records and if they are in your VA C-File then VA should pay the earliest date that you became unemployable which is 2000.

JMO

Edited by pete992, 24 June 2010 - 10:26 AM.


#4 Gardener

 
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Posted 24 June 2010 - 11:52 AM

Thanks for the replies

The VA does have the SSA records, so I guess we will see what effective date they come up with. The TDIU was granted by the BVA and the BVA decision even references the SSDI, and doctor statements (unemployable) from 2000 that was granted solely for the SC condition.

Would the records from the doctors (that were a part of my file when I first applied for sc) that stated I was unemployable in 2000 (which put me on SSDI) equate to an inferred claim for IU when they granted the 70% in 2003?

Will post the results.

Gardener


#5 jbasser

 
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Posted 24 June 2010 - 12:46 PM

3.400 Effective dates: Date entitlement arose or the date claim was filed whichever was later. In your case if a VA doc stated you were uneployable and they have this evidence then you should NOD the decision and ask for an earlier effective date. ALso remember there are several paragraphs that superceed 3.400.

Edited by jbasser, 24 June 2010 - 12:47 PM.


#6 Berta

 
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Posted 24 June 2010 - 12:56 PM

"Would the records from the doctors (that were a part of my file when I first applied for sc) that stated I was unemployable in 2000 (which put me on SSDI) equate to an inferred claim for IU when they granted the 70% in 2003?"

I would think so.If the VA was also aware of the SSA award.

VA hinges on the filing date of the 21-8940 form in most cases for EED and retro but there is topic I posted here about the "date entitlement arose" which could help you.

It is hard to know what the VA will do in your cases as to the proper EED.

http://www.hadit.com...185#entry205185
This discussion might help you-

I always give my husband as personal example of how 'when entitlement arose' works.

Filed claim for higher rating of his 30% SC PTSD in late 1992. Filed Sec 1151 claim in 1994.
Sent TDIU form in late 1992 or early 1993,
Sent SSA award in 1993 solely for PTSD.
He died 1994, claims re opened by me. denied denied denied- fought them with evidence
Awarded 100% SC P & T PTSD posthumously 1997 with an EED back to 1991.Sec 1151 claim awarded in 1998.EED 1994.

Nov 1991 was his EED for VA 100% SC-the VA used the same date that SSA did to determine when SC caused unemployability.

They never acknowledged the TDIU form at all. They can't really award a deceased vet TDIU so I guess this is why they awarded him 100 % P & T .

I feel that even when the date entitlement arose is prior to their receipt of the TDIU form (another reason we should send it and not wait for them to send it to us-as they save money when the use the 70% criteria to send it out)-
and this favorable entitlement date could be evident by a SSA award for the same disability-
the VA hardly ever recognizes the entitlement date could be more favorable that the TDIU form receipt date- and even if they do- they dont award it and hope we do not challenge this date.

In my husband's case the evidence was so clear that they could not have gotten away with the TDIU receipt form date.They never even acknowledged he sent it in.The VA also wrote to 2 Senators and my Congressman that SSA had refused to send them his SSA records,after I questioned a SOC denial I got. It was a lie.When I found out about this VA lie I made a major fuss,and soon thereafter they awarded him posthumously.

The SSA were crucial to his claim and so VA had every reason to make up a big one. The reality is his authorization forms for his SSA records remained in his file for almost 6 years - 3 years after he died but the VA never attempted to get those records.Until I raised hell when they lied to congressional inquirys. I had re-opened his 1151 claim and also filed a FTCA tort claim and was sending them and the OGC continuous evidence of their malpractice at same time I was supporting the 100% SC claim so they were not happy with me at all.They admitting to causing his death shortly after the 100% posthumous award came.

It pays to double check on SSA records and whether the VA follows through with attempting to obtain them.
An SSA award is in essence an independent medical opinion and if solely for the same SC condition,the VA MUST award TDIU or 100% SC (Washington V Derwinski) tp://www4.va.gov/vetapp03/Files/0310533.txt

Edited by Tbird, 25 June 2010 - 06:06 AM.
added link to Washington v Derwinski


#7 stillhere

 
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Posted 24 June 2010 - 01:45 PM

Thanks for the replies

The VA does have the SSA records, so I guess we will see what effective date they come up with. The TDIU was granted by the BVA and the BVA decision even references the SSDI, and doctor statements (unemployable) from 2000 that was granted solely for the SC condition.

Would the records from the doctors (that were a part of my file when I first applied for sc) that stated I was unemployable in 2000 (which put me on SSDI) equate to an inferred claim for IU when they granted the 70% in 2003?

Will post the results.

Gardener



That could be the case but I was wondering why you did not file in 2000 when you were granted SSDI? My point is when DM2 was added as a presumative in 2001 I think those that filed before got nehmed to their denial date but those that had DM2 and had not filed got only 1 year back from their claim date and those that got the DX later only go from their claim date of course.

Now if you did not file a claim in 2000 for VA benefits because you did not know you could, wouldn't the date only go back to the date you filed?

#8 Berta

 
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Posted 24 June 2010 - 02:39 PM

This regards TDIU for an AO condition?

#9 Gardener

 
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Posted 24 June 2010 - 04:08 PM

Berta,

No it does not. I believe that Stillhere was just uses the DMII as an example.

Gardener

#10 john999

 
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Posted 24 June 2010 - 04:20 PM

I think your claim is perfect example of an inferred claim for IU. The VA knew you were on SSD. They should have inferred IU. You are going to have to fight for the EED, of course.

#11 Philip Rogers

 
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Posted 24 June 2010 - 04:38 PM

Okay, here's what I see. You "may" be able to get them to go back to 2003 but they shouldn't, since the 2003 claim was an original claim. When you received the 2006 decision you should have filed a NOD, rather than filing for TDIU. If you were awarded a percentage that made you eligible, for TDIU, and it wasn't discussed, in your 2006 decision, you may be able to CUE that, which may allow you to go back to 2003 but not if they discussed TDIU in that decision. The fact that you didn't file in 2000, when you got SSDI, kinda bars you from getting that date. jbasser posted 3.400 which is your answer. I don't see an inferred claim back to 2000 but there may be an inferred claim to 2003, which would help the CUE issue.

This is not to say you couldn't win back to 2000 but I believe it's "highly" unlikely. You can't overturn 3.400 and the issue of the date the claim was filed. jmo

pr

Edited by Philip Rogers, 25 June 2010 - 12:52 PM.


#12 Berta

 
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Posted 25 June 2010 - 07:34 AM

Gardener- can you give us a link to or the Citation Number and Docket number of the BVA decision?

#13 Gardener

 
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Posted 25 June 2010 - 08:58 AM

Hi Berta,

Thank you for your help, it is greatly appreciated.

I really do not feel comfortable giving this information out. Not due to distrust of anyone on the board, but due to the fact that anything placed on a public forum can be read all over the world.

If I can answer any specific question you have, in order for you to be able to help me better, I would be more than happy to do so. Again, I value your input.

Gardener


#14 carlie

 
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Posted 25 June 2010 - 10:34 AM



I really do not feel comfortable giving this information out. Not due to distrust of anyone on the board, but due to the fact that anything placed on a public forum can be read all over the world.
Gardener




Gardener,
Just so you know - all BVA cases are posted on the BVA web site's public forum and
can be read anywhere in the world.






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