Should I Submit New Evidence Before Nod Is Resolved?

[BFR]

Greetings all!

First, I wish to thank everyone who participates in these forums, especially those who give so much time in moderating them. You are a blessing to all of us.

My question may have been asked before, but I'm not able to locate the threads, so forgive me if it's redundant. I'll put the actual question up front and supporting information after to save your time in case the answer would be the same regardless of the situation.

The Question:
Given what I think is my timeline (<10 years) should I submit the new evidence? I understand that i may delay the VA's next ruling. However, what bothers me is the effective date; if I submit new evidence *now* instead of waiting for a ruling in a year or two will the effective date of the new rating be today or be backdated to the original NOD (December 2012)?

Current situation:

Both reps I've worked with over the years have encouraged me to apply for C&T, but I've refused. I will work until I cannot do so any longer, but I feel the symptoms increase and there's something inside of me that tells me that I have less than 10 years left. Eventually I'll have to consider their advice, but as long as I can contribute I WILL. I will work until I cannot.

History:

I have a rating from VA that started at 10% and has increased to 80% over the years. As a 19D recon scout I was in combat in Desert Storm (and other places) and filed for the "presumptive" conditions of IBS, Chronic Fatigue Syndrome (CFS), and Fibromyalgia (FM) two years ago when Congress changed the law about them. Another presumptive is "skin conditions." I have a 0% for eczema from 1992, but since then have developed two types of skin cancer. I'm currently on a chemo routine to reduce them.

My current rep filed a NOD requesting the denovo process in December of 2012 because I believed my IMO was quite specific (my rep gave me very clear guidelines and examples of "va speak," and my doctor followed them exactly), and I believe that for at least for the CFS and maybe the FM CUE applies. You know the deal--the typical VA lowball for the opening round.

I have a wife and a 9-year-old daughter, and I earn a decent living. The wife has a part-time job but they depend on me as the primary breadwinner. We live modest lives, and are able to put away a small bit into savings each month. It could be more, but we tithe to our church and will continue to do so.

Edited April 18, 2014 by BFR

[john999]

I would file now for every SC condition I have. Regarding the new evidence you have the VA often will use the date of submission of new evidence as the effective date of an award. If you are at the beginning of the appeal process that is no great loss, but if your claim has been on appeal for a while it can mean a big loss of retro. Just because you get a 100% rating does not mean you have to quit your current job to satisfy the VA. If your claim has been on appeal and never become final there can't be a CUE. CUE's are only for final decisions. What is C&T by the way?

[GatorNavy]

I don't quite understand where you are in the claim's process.

When was the last date you filed a claim?

When was the last decision date on that claim?

When did you file the NOD on that claim?

You can submit evidence at any time for an "open" claim or a claim that has not had a "final decision" on appeal. This will not change your effective date. If you missed the appeal date (one year from the initial RO decision) or the decision has become final on appeal, then submitting new evidence could re-open the claim. This evidence must be "new and material" and the "new" effective date will start when this evidence is submitted (should this evidence be accepted to re-open the claim).

Unfortunately things change and it can take years to squeeze out 100% from the VA. You can still work with a 100% schedular rating. DIC could help your family in the future.

[john999]

I had a claim for an increase that was active for about five years. After a trip to the BVA I submitted some new evidence. The date the VA received my new evidence became my effective date. I appealed this decision since I got 70%, but not the TDIU I claimed. Finally after I got TDIU P&T I let the claim become final. Do I have a CUE on the ED for the 70%?

[GatorNavy]

I had a claim for an increase that was active for about five years. After a trip to the BVA I submitted some new evidence. The date the VA received my new evidence became my effective date. I appealed this decision since I got 70%, but not the TDIU I claimed. Finally after I got TDIU P&T I let the claim become final. Do I have a CUE on the ED for the 70%?

What was the status of "your trip to the BVA"? If it became final and you didn't RFC to BVA or appeal to CAVC, then you may have re-opened the claim by sending in new evidence. Or the TDIU was effective from the submission of new evidence? You may want to start another thread and ask about the cue.

§ 20.1304 Rule 1304. Request for change in representation, request for personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans' Appeals.

(a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records. An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence must be submitted directly to the Board and not to the agency of original jurisdiction. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.

[john999]

I had an active claim on appeal for 5 years, and when I got another denial when my claims was remanded back to the VARO from the BVA I submitted new evidence in the form of two IME's. I has asked for a personal hearing. My claim was never final until 7 years after I asked for an increase. The VA just moved my effective date from 30% to 70% to the date they received my IME's. What I am pointing out is that the VA often manipulates the effective date to grant the vet as little retro as possible. You may have a claim on appeal for ten years and if you send in one shred of evidence they can grant the claim and then give you the date they got the new evidence. They do this all the time. They grant effective dates as of the date of a C&P exam. They did it to me.

[BFR]

When was the last date you filed a claim?

-- I'd say 5-6 years ago for the initial ruling for the "presumptive" conditions. The ruling was made in late 2012, NOD filed in December 2012, so I'm guessing it's not "final."

You can submit evidence at any time for an "open" claim or a claim that has not had a "final decision" on appeal. This will not change your effective date. If you missed the appeal date (one year from the initial RO decision) or the decision has become final on appeal, then submitting new evidence could re-open the claim. This evidence must be "new and material" and the "new" effective date will start when this evidence is submitted (should this evidence be accepted to re-open the claim).

-- One of the presumptives is "skin conditions'' and since then I have been diagnosed and treated for skin cancer, so that would be a new facet of the claim.

-- Also, I have new evidence about the severity of two of the other conditions (the VA lowballed me the first time around). Should I submit this now or wait for the new ruling? My rep tells me that VA is working on claims from 2010-2011 and mine is filed as 2013, so it will be a while no matter what.

DIC could help your family in the future.

-- I'll have to look up to find out what DIC is. Im sure its on this site.

Thanks to all who answered. It looks as if I should go ahead and submit the new evidence as soon as possible to establish the effective date in 2014 rather than 2015 or 2016 when I finally get an answer from my NOD.

Ben