Earlier Effective Date for Increase

[gsxrmike]

Was recently granted 100% P&T after filing a supplemental claim for an increase in my Mental Health rating.  I submitted the intent to file in mid-2018 and then filed my claim about 11 months later 2019.  The VA scheduled me for a C&P exam with their Psychiatrist, who screwed up the exam and ultimately led to me continuing to be rated at 30%.  I then received a DBQ from my Mental Health Doc at the VA and submitted a supplemental claim, which led to an increase to the 70% rating for MDD and brought me to 100% P&T.  The issue is they dated the effective date for the 70% rating to the date my VA Mental Health Doc completed the DBQ, which was November 2019 and not back to my intent to file date of mid-2018.  I believe that I should be back paid to at least the intent to file date due to 38 CFR 3.2500, (h)Effective dates, (1) Continuously pursued claims.  To make matters more interesting, the DBQ from my VA Mental Health Doc says that I’ve been having all of these issues for the past 6 years. 

With the above said, here’s my questions:

1) Should I appeal the effective date of my claim?  If so, via what method?  I’ve been told Higher Level Review or to submit a 10-182 (Board Appeal - NOD).

2) If I should appeal via HLR, can I submit an HLR after a positive outcome on the Supplemental Claim?

3) If I appeal the effective date is there any chance they could reverse the decision on my 100% P&T rating or is that now protected for life?  I was told that an HLR could result in a reduction or the reviewer seeing something that could require future exams.  Is that true?

4) Are there any other issues I should consider before filing an appeal?  Any additional documentation I should try and gather from my Mental Health provider?  If I do get additional evidence can/should I submit this as another Supplemental Claim or am I forced to going with HLR or Board Appeal?

[vetquest]

First, yes when you appeal you could be reduced.  But that is not a reason to submit an HLR or BVA appeal for EED, you may be reduced at any time.  You are not safe until you have had a rate for 20 years.  You may also submit a supplemental claim with new evidence. 

Your EED claim might be hard though because the VA will say the evidence pointed to your being disabled at the time of the DBQ.  I am appealing a similar EED claim.  The VA decided I was a certain percent disabled at the time of my last C&P, not when I applied seven years earlier.  There is a catch in effective dates, you can get one at the time you filed your intent to appeal or the time that your C&P or a decision was rendered.

[broncovet]

1.  Yes.  I suggest you appeal to the BVA.  

2.  If disastisfied with the outcome, then appeal to a higher level than in the past.  Appeal to the BVA. 

3.  No.  Reductions are independent of whether or not you seek an increase.  You can be reduced at any time, up to 20 years, regardless of whether you have sought an increase or not.  

4.  I dont suggest another SCL because of res judicata.  Instead, appeal to a higher court, that is, the BVA.  

 

Quote

 

res ju·di·ca·ta

/ˌrēz ˌjo͞odiˈkätə,ˌrās/

noun

LAW a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.

 

1.  

[Buck52]

ON THE ITF??

i WOULD SURE APPEAL THAT  FOR THE CORRECT FILING DATE of the 11 months and when they made a decision

HOWEVER

An ITF is specific to the benefit sought.  When the claim received is not for the same type of benefit identified on the ITF, the ITF may not be applied to the claim for purposes of effective date assignment.

 

[gsxrmike]

2 minutes ago, vetquest said:

First, yes when you appeal you could be reduced.  But that is not a reason to submit an HLR or BVA appeal for EED, you may be reduced at any time.  You are not safe until you have had a rate for 20 years.  You may also submit a supplemental claim with new evidence. 

How am I not protected when it's 100% P&T?  My rating letter says "This total disability is considered permanent. You are not scheduled for future examinations" and my dependents are eligible for Chapter 35.  It even says "You are considered to be totally and permanently disabled due solely to your service-connected disabilities".  If I was 100% schedular or TDIU I'd get it, but 100% P&T should be PERMANENT and TOTAL, right?  (not trying to sound argumentative, only asking because I'm confused what those words actually mean then...)

2 minutes ago, vetquest said:

Your EED claim might be hard though because the VA will say the evidence pointed to your being disabled at the time of the DBQ.

Understood; however, my DBQ clearly states that these issues have been ongoing for 6 years.  No where does it state "recently", it all says "Since 2014....", which is actually the date of when I was initially granted SC and assigned 30%.  Isn't that sufficient evidence (along with the long list of evidence in my VA medical record) to prove the EED?  

I believe my claim is a bit different than yours as well, as my claim is consistently ongoing for an increase, not a break of seven years between claims.  I'm continually pursued this claim and proven that my rating is higher than they initially stated.  This is why I believe it falls under 38 CFR 3.2500, (h)Effective dates, (1) Continuously pursued claims.  I've also read the following in M21-1, Part III, Subpart iv, Chapter 5, Section C - Effective Dates, 6.b.  Continuously Pursued Claims:

"If an issue is continuously pursued under 38 CFR 3.2500(c) as a higher-level review (HLR), supplemental claim, or appeal to the Board of Veterans’ Appeals (BVA) (or a timely combination of any of those review options, in succession), decision makers must apply the effective date provisions of 38 CFR 3.2500(h)(1), which allows for an effective date based on the date of receipt of the initial claim, or the date entitlement arose, whichever is later."

I understand the argument that the DBQ outlined the disability at the time it was submitted; however, since the DBQ clearly stated these issues have been on-going since 2014 I don't see how the evidence is refutable.

[gsxrmike]

7 minutes ago, broncovet said:

1.  Yes.  I suggest you appeal to the BVA.  

2.  If disastisfied with the outcome, then appeal to a higher level than in the past.  Appeal to the BVA. 

Did you mean to say go to HLR first, then BVA if not happy with the outcome?  Not sure I can appeal to BVA twice.

7 minutes ago, broncovet said:

3.  No.  Reductions are independent of whether or not you seek an increase.  You can be reduced at any time, up to 20 years, regardless of whether you have sought an increase or not.  

Ok, but I cannot be reduced from 100% P&T, correct? (unless it was fraudulent, which this is not)

2 minutes ago, Buck52 said:

ON THE ITF??

i WOULD SURE APPEAL THAT  FOR THE CORRECT FILING DATE of the 11 months and when they made a decision

HOWEVER

An ITF is specific to the benefit sought.  When the claim received is not for the same type of benefit identified on the ITF, the ITF may not be applied to the claim for purposes of effective date assignment.

 

This increase was originally listed on the claim that dates back to the ITF submitted in mid-2018.  I didn't change what I was pursuing when submitting the Supplemental Claim, rather I provided evidence (the DBQ) to prove my claim.

[vetquest]

7 minutes ago, gsxrmike said:

How am I not protected when it's 100% P&T?  My rating letter says "This total disability is considered permanent. You are not scheduled for future examinations" and my dependents are eligible for Chapter 35.  It even says "You are considered to be totally and permanently disabled due solely to your service-connected disabilities".  If I was 100% schedular or TDIU I'd get it, but 100% P&T should be PERMANENT and TOTAL, right?  (not trying to sound argumentative, only asking because I'm confused what those words actually mean then...)

Yes this is true but the VA can come back at their discretion to re-examine your case and reduce you if they believe there is improvement up to 20 years.  This is not likely but there is always the chance with the VA.

 

9 minutes ago, gsxrmike said:

I believe my claim is a bit different than yours as well, as my claim is consistently ongoing for an increase, not a break of seven years between claims.

There was no break, it just took ten years from the time of filing until a final decision was made.  The VA is very well known for using the out of determining that your EED is the date of the last C&P or other evidence.

 

5 minutes ago, gsxrmike said:

Did you mean to say go to HLR first, then BVA if not happy with the outcome?  Not sure I can appeal to BVA twice

If your situation is a remand, the case is not considered final until the BVA signs off on it or you stop your appeal.  If this is a remand do send it back to the BVA and maybe

not to an HLR because you do not lose your place at the BVA on a remand and it will be decided much quicker than a new claim to the BVA.