Rating increased to 50%

[Tazinhawaii]

So the VA just awarded my claim for GERD at 10% which increased my overall to 50%.  I'm retired Navy so this means the Gov't will stop robbing my retired pay, YEAH!!  But I'm confused on how far back my back pay will be.  I submitted my intent to file via e-benifits in August 2015.  I didn't actually file the claim until 3/2/2016.  The disabilities page in e-benefits states the award date is 3/2/2016.  I thought the idea of submitting the intent to file was to establish an earlier filing date.  I did the FDC claim as well.  I haven't gotten my letter yet from the VA.  But should I get back pay to Aug 2015??  Or only March 2016?

I've spent the last hour searching for answers, but haven't found them.

Thank you,

Derrick

[Tazinhawaii]

So I got a very interesting phone call yesterday from the VA.  The person processing my NOD into the system called to recommend I change it to a reconsideration request instead.  She said she talked to people there and they recommended it as it would be much faster and seemed pretty straight forward.  She wasn't able to confirm that it's an error, but certainly implied it.  We'll see how this works out.

[Buck52]

 You need to wait until yo get your  award packet...look so see if they awared your claim back to 8- 2015? 

My understanding of the ITF the claim date is the date you file on ebennys but not hit submit button & then the ITF Claim is good for 1 year and the date you submitting your case you file ITF on Aug## 2015  & your claim was awarded  3-2 -2016  the correct EED would be Aug-2015

if they have your ITF Claim dated from 3-2016  that's wrong

File a NOD disagree with the EED Date  it should be from the 8- 2015 date  or the next month 9-2015   because of the advanced payment starting on the 1st of each month.

jmo

.................Buck

[Buck52]

 Here is an opinion from a Veteran over at VBN Site.

Posts: 19107

 Jan 23 13 1:39 P

    What folks here refer to as a "reconsideration" is nothing more than a reopened claim and it requires new evidence not previously considered.  Absent a clear and unmistakable error, a decision cannot be changed by the office of original jurisdiction based on the same evidence that was used for the original decision.  

With that in mind, you cannot have both a reopened claim and a Notice of Disagreement pending at the same time on the same issue.  If you file a Notice of Disagreement the reopened claim will be withdrawn since there would be no further jurisdiction to consider that claim due to the NOD.  It would now be in the hands of the appellate people.

Also, the reopened claim (reconsideration) does not extend the original appeal period; therefore, unless you are absolutely sure that the new evidence will result in a change in the first decision, you should submit an NOD prior to the expiration of the appeal period.  If you don't and that decision becomes final, any NOD on the reopened claim will be based on that date of claim.  

That doesn't automatically mean that you would lose the earlier effective date if you subsequently prevail on the appeal since the determining factor in this is when the new evidence that warranted a change in the prior decision was received, not when that prior appeal period ended or when the decision was made on the reopened claim.  If the critical evidence was RECEIVED by VA prior to the expiration of that earlier appeal period, the earlier effective date is still in play regardless of when the actual decision on the reopened claim is made.
 
 

Edited June 14, 2016 by Buck52

[Tazinhawaii]

25 minutes ago, Buck52 said:

 You need to wait until yo get your  award packet...look so see if they awared your claim back to 8- 2015? 

My understanding of the ITF the claim date is the date you file on ebennys but not hit submit button & then the ITF Claim is good for 1 year and the date you submitting your case you file ITF on Aug## 2015  & your claim was awarded  3-2 -2016  the correct EED would be Aug-2015

if they have your ITF Claim dated from 3-2016  that's wrong

File a NOD disagree with the EED Date  it should be from the 8- 2015 date  or the next month 9-2015   because of the advanced payment starting on the 1st of each month.

jmo

.................Buck

Yes, I got the award package.  They only awarded effective date of March this year.  I think this falls in the clear and unmistakable error.  I withdrew the NOD and submitted for reconsideration with a copy of the rules and bennies printout of when I initiated my claim and the e-mail I received when I initiated my claim.  I think it should be pretty straight forward and they came give me my additional $8K in back pay.

[Buck52]

Just my oinion but you should have filled the NOD  to protect your EED.  

Filing a Reconsideration for EED will lose your EED .

If your lucky they will turn this Reconsideration back to the NOD.

  Note:

This below was written by /From a RETIRED VA RATER 20 years with the VA Claims.

 You recently had a discussion about how "reconsideration" is used instead of going straight to a formal appeal. These are my comments about that.

I agree with you and the lawyer, there is no such thing as “reconsideration.” These are duplicate claims with no basis in law to reconsider unless evidence, not previously considered, is received. What should be happening in these cases (we routinely did it until around early-mid 2000, is that a letter should be sent to Veteran indicating that if he has additional evidence not previously considered, we will be glad to reconsider; otherwise, you have the remaining one year to appeal the decision. At this point, any pending claim would be cancelled.

It could also be liberally construed as a dissatisfaction with the decision and accepted as a Notice of Disagreement. In my opinion, this is the best option so the Veteran does not get more unnecessary letters and further delay of the inevitable denial possibly several more times.

38 CFR 3.160(d) describes a "finally adjudicated claim."

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.

The VCAA that now exists covers not only what is required for service connection, but also any evaluation and effective date that is assigned.

In other words, there is only one VCAA letter required for the entire claim period even if BVA does not make a decision for years (as long as no new law change impacting it) because it is not yet finally adjudicated.

Instead of reverting back to that simple process, particularly in the absence of new evidence that has not been previously considered, VA opens a new claim, sends another VCAA letter, and then requests the exact duplicate evidence that they just requested months earlier. Talk about an appellate administrative nightmare and a clear waste of human resources! They now have taken credit for working five cases when, in fact, they truly only worked one (and four duplicate claims). Now, they have a backlog that Veterans are being blamed for.

VA should be answering this question. How it is possible for them to reconsider a claim that is not yet finally adjudicated, in the absence of new evidence not previously considered (in other words a duplicate claim with no basis in law)? The training on finally adjudicated claims started going awry when they separated appeals out from the regular workload. As time went on from this point, there was (and still is) little to no appeals training and we now have a complete and utter mess that is so out of control that it is sickening. This is also why dependents are added so often with the wrong effective date. I can’t tell you how many senseless appeals we have on this issue.

The “finally adjudicated claim” was grounded in every employee when I started working there. You heard it, ad nauseam, until you knew what it was and what it meant.

VBMS will not solve any of these problems and the Veterans will continue to have long delays. The VA will continue to shift the sand piles (workload) from one area to another for the illusion of progress being made. With the completely disorganized way documents are being placed in this new system, the massive duplicate and triplicate evidence that is already contained in the claims file being scanned in, as well as many other problems that timely affect a rater, including the massive latency issues and having to open one page at a time and then having to change each one to a full screen or having to scroll the page, one cannot tell how much time will be added to process an appellate case.

 

Edited June 15, 2016 by Buck52

[pwrslm]

I did the reconsideration, it worked for me.  That is no guarantee for you.  Took 4 months to complete, but in the end they got it right.  CUE was so obvious it was like someone hit the original rater with a stupid stick.

This type of reconsideration is listed only in M21 training manual, and is limited as to what they can do.  If you do this, give them no more than 90-120 days, and then submit the appeal to get your date reserved.  This is not in the CFR, nor is this in the USC, it is independent and the VA can totally ignore it, so watch it closely.