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Denial of Claim for Earlier Effective Date for Disability Award Affirmed

By FindLaw Staff on May 20, 2010 | Last updated on March 21, 2019

Gaston v. Shinseki, No. 09-7104, concerned a petitioner's claim for an earlier effective date for his award of total disability based on individual unemployability (TDIU).  In affirming the judgment of the United States Court of Appeals for Veterans Claims denying his claim,  the court held that under 38 U.S.C. section 5110(b)(2), a veteran is only entitled to an earlier effective date if an increase in his disability occurred during the year before he filed his claim.     

As the court wrote: "It is clear from the plain language of 38 U.S.C. section 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.  Section 5110(b)(2) first specifies that the effective date of an increase 'shall be the earliest date' that the evidence shows 'an increase in disability had  occurred.' The statute then imposes a condition, permitting the application of this earlier date only 'if application is received within one year from such date."

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