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?

[gsxrmike]

1 minute ago, vetquest said:

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.

This was done via new claims process.  I was denied on initial claim, then submitted a supplemental claim and was awarded 100% P&T.  With that in mind, you still believe going for BVA appeal vice HLR and then BVA?

[vetquest]

In that case I would attempt an HLR.  It takes longer at the BVA and you might get satisfaction at the HLR.  If you want to add more evidence us a supplemental again as it is your right.  

[gsxrmike]

11 minutes ago, vetquest said:

In that case I would attempt an HLR.  It takes longer at the BVA and you might get satisfaction at the HLR.  If you want to add more evidence us a supplemental again as it is your right.  

Copy, wasn't sure if I should just go HLR or if I could submit another supplemental claim after just "winning" a supplemental claim and asking for an EED and then attach a letter from my Mental Health Doc stating these issues have gone on for years.  I'm aware that it's possible to go one year prior to the ITF in this case (if you can prove it).  All I want is what I feel is owed to me (backpay to my ITF date).  Anything beyond that is gravy.

[vetquest]

I fully understand your situation.  It is hard to wait for your case to finish and then find that the VA has eluded your full benefits with a workaround on your effective date.  This is one of their dirty tricks.  Good luck and keep us apprised.  You may want to consider a lawyer if you appeal your EED to the BVA.  They take twenty percent of your award but that is better than 100% of nothing.  A good NOVA approved lawyer can help you navigate the black holes in the BVA process.  Unrepresented veterans do not do well at the BVA as a norm..

Edited January 26, 2020 by vetquest

[gsxrmike]

1 minute ago, vetquest said:

I fully understand your situation.  It is hard to wait for your case to finish and then find that the VA has eluded your full benefits with a workaround on your effective date.  This is one of their dirty tricks.  Good luck and keep us apprised.  You may want to consider a lawyer if you appeal your EED to the BVA.  They take twenty percent of your award but that is better than 100% of nothing.  A good NOVA approved lawyer can help you navigate the black holes in the BVA process.  Unrepresented veterans do not do well at the BVA as a norm..

Thanks for the support and quick responses.  Will keep pressing, have gotten this far and not about to give up now.  If I do go BVA appeals route I'll retain a lawyer.  As you said, would rather have 80% of something than 100% of nothing.  Time to go get my ducks in a row to support my supplemental claim for EED.

[Buck52]

I'm not sure I understand your claim...you filed an ITF 

Quote''  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%.''

***No increase for the ITF....Claim you stayed the same rating  which means your disability never got worse.***

Then you

'' 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-201

They look like they change up what you were filing an increase on with the  ITF and  rated you with the MDD? 

 IF THIS IS DIFFERENT THAT WHAT YOU FILED THE ITF CLAIM FOR.....IF IT IS  THEN YOU CAN'T GET THE  ITF.

iF a Veteran files the ITF  for a specific claim then the ITF is only for that specific claim, you can only have One ITF Claim at a time  you can't file an ITF with Multi-claims   you got to stick with what you originally filed the ITF Claim on  or For

Like I said I may not be understand all this??