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SPO
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So I rolled the dice and went with and HLR. 10 days after submitting, I show retro payment in my payment history and the correct effective date on my benefit summary letter. This brings me to a close with my VA claims. 100% P&T with the correct effective date. Thanks to everyone on here! Your advice and personal experiences have been invaluable. I hope someone else can take these experience and posts to reach their VA goal as well. THANK YOU ALL!
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So I'm taking my chances and going HLR with this statement.
In the 11/30/2021 ratings decision I was assigned a 0% rating from 11/16/2018 to 07/07/2020 for all the items listed on on the
VA form 20-0996 (dated 2/09/2022). The effective date of 07/07/2020 for the all of these evaluations should be adjusted
11/16/2018. This is based on the previous application of CFR § 3.25(h)(1) in my supplemental claim decision, dated
07/31/2020. In this decision (07/31/2020) the effective date for the 2 items that were granted (Psoriatic arthritis of the back at
20%, and Psoriatic arthritis of the hip at 10%) were assigned an effective date at those percentages from 11/16/2018. It is
noted in the 07/31/2020 decision that this date is awarded because the claim has be continuously pursued in accordance
with CFR § 3.25(h)(1). This claim still falls under this regulation because I filed an appeal within 1 year of this decision.
The ratings decision dated 11/30/2021 used the same C&P exam, dated 07/07/2020, information as the supplemental claim
(07/31/2020) to justify the ratings percentages assigned, but assigned different effective dates. In addition, a 0% rating from
11/16/2018 to 07/07/2020 cannot be justified if it is based on the results the initial C&P, dated 04/19/2019, because it was
inadequate. The reasoning for this is explained in a statement I filed as part of the supplemental claim. Since the initial
exam was inadequate, the VA did not meet its duty to assist in providing a thorough and complete medical exam to evaluate
the severity of my conditions until 07/07/2020. Therefore any previous C&P exam should not be used to attempt to justify a
lower rating percentage or effective date.
In all the VA inequitably and inconsistently applied the regulations concerning assignment of effective dates and this
negatively impacted my overall rating, financial situation, and effective date of my permanent and total designation, thus
affecting availability of other benefits I should have had access to. -
This is out of the M-21 for effective dates. My take is that the VA has to establish for sure that I didn't meet the criteria for that rating at the date of receipt in order to not use it as the effective date. The did give me a C&P shortly after the date of receipt, which I disputed in the supplemental claim because she ignored diagnosis paperwork and didn't use a goniometer, and didn't even look at all my claimed joints. I'm assuming they are using this exam to say I didn't rate above 0% from the start. Looking for the best argument to get them to overturn.
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When applying the general rule, the assignment of an effective date based on date entitlement arose being later than the date of receipt of the claim is only appropriate when the evidence clearly establishes that the entitling criteria were not met as of the date of receipt of the claim.
Also, here is a copy and paste out of my supplemental decision for why they went back to the date filed for one of the items I was granted at that time. In my eyes, this mean the VA acknowledged that they could not use date entitlement arose instead of date filed, and they regulation should have been applied in the same manner for subsequent decisions using the same evidence."An evaluation of 20 percent is assigned from November 16, 2018, which is the date we received
your intent to file prior to receipt of the initial claim regarding this condition. Per VA
regulations, the effective date will be fixed in accordance with the date of receipt of the initial
claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by
timely filing in succession any of the available review options within one year of the issuance of
the decision. (38 CFR 3.2500) When a claim of service connection is received more than one
year after discharge from active duty, the effective date is either the date VA received the intent
to file (if the claim is received within 1 year of the intent to file), or the date VA received the
claim. (38 CFR 3.155, 38 CFR 3.400) Since this issue/claim has been continuously pursued, an
effective date of November 16, 2018 is warranted." -
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The question is then either way. How to word the argument to prove continuously pursued is the right way. I mean they used that same evidence to set the effective date all the way back on the supplemental claim.
FYI the exam in 2018 was complete garbage. Denied everything and they did not use a goniometer. I wrote a statement in the supplemental explaining all the issues.
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As of today, my appeal was officially closed. Overall I won. I was granted 100% P&T, even after some additional exams. However they effective date only went back to July 2020 (date of my last c&p), I originally submitted in November 2018. So missing close to 2 years of pay. The supplemental claim which this appeal was based on did grant me a couple items, which were dated all the way back to November 2018. That decision stated this was because the claim was continuously pursued. My appeal was filed less than a month after the supplemental decision, so in a timely manner. This appeal implementation decision did not use that logic and decided the date of the c&p was the first time they had evidence (I was given 0% rating from November 2018 to July 2020 on most items). Now the question is do I HLR and try to argue they used 2 different methods to determine effective date based on the same evidence, or take it right back to the board? one guy at DAV said take it to the board so they don’t mess with anything else, but I’m not sure if there is any truth in that.
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Does anyone know of any legal precedent that applies to scheduler 100%. 1 condition that effects multiple joints but add to 100% (by VA math). The va rated them as about 13 different items. The case mentioned above seems to apply to using TDIU as the 100%. I am not TDIU.
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So I have a 60% rating for psoriasis, the psoriatic arthritis is secondary to this. Is that considered separate and distinct?
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My thing is they have already paid me some retro, but not to the right effective date. Just trying to be hopeful that I won’t have to appeal again
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I know the regulation reads 1 condition at 100% and another 60% on top of that to qualify. However, If I have multiple joints (psoriatic arthritis) effected by the same condition that total to 100% and still at least 60% in other ratings, would that qualify for SMC-S?
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Here is a hypothetical. Has anyone ever seen the VA make a partial decision on a Board grant, and issue an effective date to keep the payment amount under the $25k point, for which they need more signatures, to possibly get the payment sent out faster. Then finish necessary development and fix the effective date to issue the rest of the back pay? Just being hopeful that is what may be the situation with mine. It is flagged as hardship, so maybe they hoping they were just keeping the back pay number down for now to get it out the door faster while they finished some other stuff.
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So my big question is can I be reduced and lose 100% p&t from these upcoming exams?
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Can I file a VA induced anxiety claim?
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I can’t disagree back to the board according the decision letter under ama. I just have to take whatever they give me. I’m beyond frustrated, especially since my VSO doesn’t want to help.
also they have ignored my doctors treatment records in the last 2 c&p. Nothing makes me think they won’t do it this tkme
i need a way to be more proactive, maybe whitehouse hotline?
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So what happens if this next examiner decides i don’t have painful motion or reduced range of motion ? I get reducedd? Then have to continue to fight.
Also this is AMA and my BVA decision letter says if I don’t like it I can only go supplemental or CAVC. -
So QTC called again, they have decided they want in person exams on all my ratings for an increase I didn’t ask for. Including bloodwork which diagnostic and cannot show severity. They are trying to screw me. I am 100% convinced of that. I have fought them for several years to get this rating and now it’s all on the line hoping another worthless QTC examiner does their job, which I know they won’t. I am so pissed right now. My DAV reps just want to wait and see what they do. I’m screwed and will have no choice but to go to CAVC to fight to get a rating back. They are not looking at EED , only current severity.
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I spoke to someone at QTC today and they are ACE exams. She read one of the requests off to me and it was something like “the veterans service connected arthritis of the left ankle is currently rated at 10%, please evaluate the current level of severity”
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I’m gonna try to just see what happens. DAV Says it looks like records review exams and is labeled as possible increase. So hoping for the best.
I’m thoroughly confused on SMC s. I was just talking to a friend who has smc s-1 and doesn’t have a single 100% rating, but his total adds up to around 160%.
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I don't know if this will provide clarity, but here are Board and VBA decisions. As a reminder, all the items discussed in these letters have been issued ratings and effective dates, but are still also deferred. These are the only items I have on appeal or in any claim right now. Before this appeal was completed I was at 90%, and after these decisions I am at 100% P&T.
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It says they want to have an exam for the “current severity” for each of the 12 items. I posted a copy and paste of the section about my left shoulder, but all 12 items have the same statement about an exam. The BVA granted only service connection, I ratings at all. I have not have these exams. The ratings I received were based off a c&p in 7/2020.
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There is some confusion. All the items we are taking about are the same 12 from that screenshot. They issued ratings on them and also say they are still deferred and want exams. The rating on these 12 raised me to 100% p&t.
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I have it in writing. It says they want exams to evaluate currEnt severity.
HLR or back to board
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
I did it myself. DAV had been pretty useless in my appeal.