Intent To File process vs. CFR 20.305

[SA_oatmeal]

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?

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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

[broncovet]

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.  

[broncovet]

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?