Jump to content


  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

    Click here to purchase your digital journal. HadIt.com receives a commission on each purchase.

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0
Sign in to follow this  
SA_oatmeal

Intent To File process vs. CFR 20.305

Question

In anyone's experience in preceding a formal claim submission with an Intent To File notification, does CFR 20.305 (Computation of Time Limit for Filing) rule apply to the Intent To File process timeframe requirements for completed claim award effective date?

-------

My scenario: On 8/06/2015 (Thursday) my Intent To File notification was received/logged online by VA via eBenefits. The next month my mother was hospitalised by coma and died at end of month. For several months afterwards, I did nothing with the claim. During July 2016 I completed the claim in eBenefits but could not submit for system errors over 2+ weeks of attempts (as Support Desk advised they only assisted with access to eBenefits and not any problems using it).

1-2 days before Intent To File expiry, I recreated the claim via paper form and was forced to mail it out via USPS the morning of Intent To File expiry. As a result of inquiring with VA personnel at both the regional hospital and attached CBOC, as well as via 800-827-1000, and being informed that VA would adhere to postmark date for preserving Intent To File effective date, I paid an extra fee to guarantee USPS postmark the submittal that morning (Saturday 8/06/2016) and cause issue of postmark verification document. The completed claim form was received by VA on 8/09/2016.

After retention of legal representative, VA awarded me benefits for a portion of my claim's conditions (the remainder of the claim being still in Appeal) with effective date of 8/09/2016, the day they received my mailed claim submittal.

If Intent To File timeframe requirement is exempt from Rule 305, then, since my mailed claim submittal wasn't received until 3 days past Intent To File expiration, my effective date is correct as presented.

If Rule 305's Time Limit Computation directives DO apply to the Intent To File process, then my effective date should be nearly a full year earlier than was presented, to encompass the Intent To File's preserved receipt/initiated date of 8/06/2015.

My lawyer, upon a cursory review of the information I just related above, is of the INITIAL opinion that the VA's presentation of effective date is NOT challengable due to the Intent To File process being exempt from Rule 305. This is based partly on the word choice* that frames the Intent To File process description (in at least one place, though not consistently in what documentation** of the process that I have been able to reference).

Please ask away if more information is felt necessary, and I will further furnish what I can.

 

"received within 1 year" ... rather than "filed" or "submitted" (as with Rule 305 employing " filed within a specified period of time")

** https://www.benefits.va.gov/BENEFITS/factsheets/general/ITF.pdf

Share this post


Link to post
Share on other sites

2 answers to this question

Recommended Posts

  • 0

First of all, read the regulations, not the brochure:

 
Quote

 

3.155 How to file a claim.

The following paragraphs describe the manner and methods in which a claim can be initiated and filed. The provisions of this section are applicable to all claims governed by part 3.

(a)Request for an application for benefits. A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not of full age or capacity, who indicates a desire to file for benefits under the laws administered by VA, by a communication or action, to include an electronic mail that is transmitted through VA's electronic portal or otherwise, that does not meet the standards of a complete claim is considered a request for an application form for benefits under § 3.150(a). Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary.

(b)Intent to file a claim. A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received.

(1) An intent to file a claim can be submitted in one of the following three ways:

(i) Saved electronic application. When an application otherwise meeting the requirements of this paragraph (b) is electronically initiated and saved in a claims-submission tool within a VA web-based electronic claims application system prior to filing of a complete claim, VA will consider that application to be an intent to file a claim.

(ii) Written intent on prescribed intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted as an intent to file a claim.

(iii) Oral intent communicated to designated VA personnel and recorded in writing. An oral statement of intent to file a claim will be accepted if it is directed to a VA employee designated to receive such a communication, the VA employee receiving this information follows the provisions set forth in § 3.217(b), and the VA employee documents the date VA received the claimant's intent to file a claim in the claimant's records.

(2) An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which theclaim is based. To the extent a claimant provides this or other extraneous information on the designated form referenced in paragraph (b)(1)(ii) of this section that the form does not solicit, the provision of such information is of no effect other than that it is added to the file for appropriate consideration as evidence in support of a complete claim if filed. In particular, if a claimant identifies specific medical condition(s) on which the claim is based in an intent to file a claim, this extraneous information does not convert the intent to file a claim into a complete claim or a substantially complete application. Extraneous information provided in an oral communication under paragraph (b)(1)(iii) of this section is of no effect and generally will not be recorded in the record of the claimant's intent to file.

(3) Upon receipt of an intent to file a claim, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the appropriate application form prescribed by the Secretary.

(4) If an intent to file a claim is not submitted in the form required by paragraph (b)(1) of this section or a complete claim is not filed within 1 year of the receipt of the intent to file a claim, VA will not take further action unless a new claim or a new intent to file a claim is received.

(5) An intent to file a claim received from a service organization, an attorney, or agent indicating a represented claimant's intent to file a claim may not be accepted if a power of attorney was not executed at the time the communication was written. VA will only accept an oral intent to file from a service organization, an attorney, or agent if a power of attorney is of record at the time the oral communication is received by the designated VA employee.

(6) VA will not recognize more than one intent to file concurrently for the same benefit (e.g., compensation, pension). If an intent to file has not been followed by a complete claim, a subsequent intent to file regarding the same benefit received within 1 year of the prior intent to file will have no effect. If, however, VA receives an intent to file followed by a completeclaim and later another intent to file for the same benefit is submitted within 1 year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within 1 year of the subsequent intent to file.

(c)Incomplete application form. Upon receipt of a communication indicating a belief in entitlement to benefits that is submitted on a paper application form prescribed by the Secretary that is not complete as defined in § 3.160(a) of this section, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form prescribed by the Secretary. If a complete claim is submitted within 1 year of receipt of such incomplete application form prescribed by the Secretary, VA will consider it as filed as of the date VA received the incomplete application form prescribed by the Secretary that did not meet the standards of a complete claim. See § 3.160(a) for Complete Claim.

(d)Claims.

(1)Requirement for complete claim and date of claim. A complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA for an evaluation or award of benefits under the laws administered by the Department of Veterans Affairs. If VA receives a complete claim within 1 year of the filing of an intent to file aclaim that meets the requirements of paragraph (b) of this section, it will be considered filed as of the date of receipt of the intent to file a claim. Only one complete claim for a benefit (e.g., compensation, pension) may be associated with each intent to file a claim for that benefit, though multiple issues may be contained within a complete claim. In the event multiple complete claims for a benefit are filed within 1 year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim. In the event that VA receives both an intent to file a claim and an incomplete application form before the complete claim as defined in § 3.160(a) is filed, the complete claim will be considered filed as of thedate of receipt of whichever was filed first provided it is perfected within the necessary timeframe, but in no event will the complete claim be considered filed more than one year prior to the date of receipt of the complete claim.

(2)Scope of claim. Once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to 38 U.S.C. Chapter 35 Dependents' Educational Assistance benefits, entitlement to special monthly compensation under 38 CFR 3.350, entitlement to adaptive automobile allowance, etc.). The claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed. VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities. VA's decision on an issue within a claim implies that VA has determined that evidence of record does not support entitlement for any other issues that are reasonably within the scope of the issues addressed in that decision. VA's decision that addresses all outstanding issues enumerated in the complete claim implies that VA has determined evidence of record does not support entitlement for any other issues that are reasonably within the scope of the issues enumerated in the complete claim.

 

Your effective date will be the later of the "date of claim" or facts found, with multiple exceptions.  

If you are dissatisfied with your attorneys results or explanations, ask him or her.  If you can not reach an agreement, then fire the attorney.  

Share this post


Link to post
Share on other sites
  • 0

Did the VA give a reasons and bases for the effective date, in the decision?  Did your attorney refute those reasons?  What were the reasons?  

At what level of appeals are you?  

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Similar Content

    • By S. Bruce
      I was awarded 30% service connected for sleep apnea when I left the military in 2008. In 2013, I was directed to and took another sleep study. It was found and the VA agreed that I needed to start using the CPAP. VA reviewed the evidence, agreed, paid for and I have been using the CPAP since 2013. In Sep 2019, during a review of my records, my representative informed me that using the CPAP meant that my SA rating should be 50% versus 30%. I filed an increase claim and was increased to 50% with an effective date of Sep 2019.  Shouldn't the effective date be April 2013 when the diagnosis was received and approved? I checked and the 50% rating for using a CPAP was in place in 2013. I wasn't aware of the rating difference at that time, so I didn't file a claim at that time. I'm asking because I'm thinking I may be due some back pay...……….
    • By GeekySquid
      Several discussions about ITFs under the AMA process have cropped up in other forums. Today in talking about one it dawned on me I could find out a few things by simply starting to file under the AMA process.
      In short what I found is that ITF's do indeed exist under the AMA process for New Claims. The process also recognizes automatically if you have an existing ITF from before Feb 19, 2019.
      Attached are 5 screen caps on the process. Caps 1 and 5 related to filing a New Claim. The other 3 show what your options are depending on the date of the decision you are appealing.
      Read the fine print on Cap 5 concerning previous ITF's.
      Will this change? who knows, but as of now the application process under AMA for a New Claim indicates that ITF's are alive and breathing on their own.
       





    • By GeekySquid
      Another question about the AMA process.
      In 2018 I filed for SMC for ED. I was awarded 0% but SMC allowed. yippee.
      At that time the Award letter said I had a potential claim for Voiding Dysfunction if I choose to file for it.
      Since my other claims were tied up on the VA hamster wheel, I filed an Intent to File.
      AS I understand it since Feb 19 that Intent to File is gone? and my earlier date is done, meaning when I file for the Voiding Dysfunction my file date will be the earliest possible under the new AMA process?
      Is there a way around this to get an EED back to 2018?
    • By chibears3531
      The issue:
      I’m on the verge of filing a large VA claim to include migraines, erectile dysfunction, obstructive sleep apnea, and a few other conditions.
      However, I think I may be eligible for an earlier effective date going back to 2008 for the migraines and ED. I’m hesitant to file for the migraines and ED in this claim because I do not want it to nullify my chance at an earlier effective date.
       
      Background (long read, sorry!):
      After reviewing my C-File, I'm pretty sure VA underrated and possibly clearly and unmistakably erred (CUE) 11 years ago in their decision based on the detailed evidence from their c&p examination.
      Essentially, the VA decision said that I don't have prostrating migraines because I don't have emergency room or sick call visits. They conceded I have cognition issues from all the concussions and awarded 10% for:
      “traumatic brain injury with post concussive syndrome (also claimed as migraine headaches)”
      This was despite having an in service migraine diagnosis (which was in their possession at the time and in my C-File) and the fact that their C&P examiner said that I have “prostrating migraines 4x per week”.
       
      Unless I’m mistaken, if the VA had in their possession evidence that would warrant a higher rating of the migraines at time of the decision 11 years ago, they violated 38 CFR 4.6.
      Additionally, while I did not claim erectile dysfunction, I think this may have been an “inferred claim” seeing as the c&p examiner noted:
      “Q22. Sexual functioning?
      A22. Yes, problems with achieving and maintaining erection. The veteran has started to use Levitra, which helps. He mentions he has been taking Celexa, had been discontinued, and has less of sex.”
      “DIAGNOSIS: Traumatic brain injury with post concussion syndrome and migraine headaches, and erectile dysfunction (with etiology as least as likely as not related to the TBI).”
       
      I've heard that the VA stopped honoring claims to re-open so I'm unsure as to the best way to proceed for establishing an earlier effective date for a migraine rating. I also suspect that it's too late for them to honor the special TBI re-processing rules if the exam was not conducted by a neurologist (he was an internal medicine MD).
       
      Finally, just to re-iterate, I’m hesitant to file a claim for migraines and ed in this new claim because I don’t want to possibly lose my earlier effective date by doing so. My tentative plan is to include them in the new claim anyway and in a statement ask that the “TBI with PCS (also claimed as migraine headaches) be split into “8045 TBI residuals” and “8100 Migraines” with each condition being rated separately.
      Then after the decision is rendered, file a supplemental claim with the 2008 c&p exam notes appealing for an effective date to 8/31/2008. If that fails, that’s when I would look toward filing for a CUE.
      Does this sound like a solid plan of attack?
    • By 31BHayes
      So I started my "Fully Developed Claim" 02/08/2019 had my VA Comp and Pen Exam 03/18/2019 . My original completion date was 08/05/2019. Then after my Exam 05/03/2019.
      This is my story I've injured both knees, both feet and back while serving In the Army in 2017. progressively my back gave out on me. Now I'm young 25 years, can't work and didn't know about my options until just recently. Lucky for me I was within my year of separation so I got a VSO to work with me and my claim. Still waiting if it's an approval or denial, however today Ebenefits updated status from "Pending of Decision" to "Pending Decision Approval. With a new estimated date 04/30/2019. What happens next. Will I know I'm approved before notification in the mail?
  • Ads

  • Our picks

    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
        • Like
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines