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We all know that VA is in the habit of granting a veteran service connection after he/she has a C & P exam but the regulation does not support that if a veteran already has a diagnosis. 38 CFR 3.400 also includes 38 CFR 3.156 and 3.157 to include newly found medical evidence, SMRs and medical treatment records. Effective date are very tricky and the only true way to figure out a veterans effective date is to review his/her entire VA C-file. Would like to hear your feedback. Will someone please spotlight this regulation I keep forgetting it then have to find it all over again.
38 CFR 3.400
(a) Unless specifically provided. “On basis of facts found”.
What are the facts? When was the earliest date a veteran was diagnosed with his/her disability? When could VA ascertain this medical evidence/information? These are the questions to ask about your effective dates.
(o) “Increases (38 U.S.C. 5110(a) and 5110(b)(2), Pub. L. 94-71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 – (1) General. Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later”. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.
(2) “Disability compensation. Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim”. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established.
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We all know that VA is in the habit of granting a veteran service connection after he/she has a C & P exam but the regulation does not support that if a veteran already has a diagnosis. 38 CFR 3.400 also includes 38 CFR 3.156 and 3.157 to include newly found medical evidence, SMRs and medical...