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?

[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 (unless I am wrong here?)

Another thing I don't understand is  if you were 30%  and then recieved a 70% rating for MDD ...that totals to 79% rounded out at the 80% rating...how did they make you 100% P&T if you were not given IU  ( Extra Scheduler 4.16)

As for as being safe with your ratings  or any rating....>  they have a 5 year protection rule  10 year protection rule and a 20 year protection rule on our sc ratings  the one that counts  basically is the 20 year rule   otherwise your subject to be called up for a C&P any time they want to  even if the said no future exams scheduled

Actually  There is no such thing as a protected rating. VA does use the term but includes a qualifier.

A 100% permanent & total rating becomes "protected" after the veteran has held that rating uninterrupted for 20 years. Once the veteran has reached that point, the rating may still be modified if VA believes that fraud occurred at any point in time.

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

 

Edited January 27, 2020 by Buck52

[gsxrmike]

7 minutes ago, Buck52 said:

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??

 

Mid-2018: Filed ITF

Mid-2019: Less than a year after filing ITF I filed my claim.  This had increases for several items, some which were granted, some which were denied.  

Late 2019: My MH condition (Labeled as Adjustment Disorder) DID get worse, but the VA C&P examiner didn’t mark this on his exam, thus screwing me over (he didn’t care about my situation and completed the spot in 10 minutes)

My VA MH Doc found out what the C&P examiner noted on the DBQ and didn’t agree; thus he filled out a DBQ saying “Since 2014...” my condition has gotten worse and become MDD (Chronic, not temporary like Adjustment Disorder).

Late 2019: I submitted a supplemental claim requesting they assign the proper increased rating for my MH condition per the DBQ from my MH provider.  They reviewed this and increased my rating to 70%.  It now lists “MDD (previously adjustment disorder)” on my Disabilities list.

[gsxrmike]

Also, I was already at 90% combined, so when my 30 went to 70 I became 100% P&T

[Buck52]

CORRECTION

Veteran can file multi claims using the ITF Claim

When an active ITF is of record and multiple claims are subsequently received all on the same date, apply the ITF to all claims received on the same day. Example: An ITF for compensation was received on June 11, 2019. Subsequently, on September 14, 2019, an initial claim for compensation is received through the mail.

I stand corrected...sorry.

[Buck52]

You Need to Appeal the ITF DATES...And also Appeal the increase if your condition has got worse   don't be afraid to use these Appeals 

  YOU MAY ALREADY KNOW THIS....BUT If you choose the Supplemental claim lane  you can add more new evidence   vs  filing the HRL  NO NEW EVIDENCE IS ALLOWED

 

you have a Year to appeal but appeal the ITF for sure.

How did you get 100% P&T with a 80% combined rating?

 

a 30% and a 70% combined rating is 79% only  and  rounds out at the 80% combined rating.

do you have another higher rating?

Edited January 27, 2020 by Buck52

[gsxrmike]

1 hour ago, Buck52 said:

You Need to Appeal the ITF DATES...And also Appeal the increase if your condition has got worse   don't be afraid to use these Appeals 

  YOU MAY ALREADY KNOW THIS....BUT If you choose the Supplemental claim lane  you can add more new evidence   vs  filing the HRL  NO NEW EVIDENCE IS ALLOWED

you have a Year to appeal but appeal the ITF for sure.

I'm not afraid to use the appeals process, that's how I got to the 100% P&T rating.  I understand that I can file another supplemental claim with more evidence or just go HLR.  I'll most likely get the additional evidence, then file another supplemental claim and see what happens.

1 hour ago, Buck52 said:

How did you get 100% P&T with a 80% combined rating?

a 30% and a 70% combined rating is 79% only  and  rounds out at the 80% combined rating.

do you have another higher rating?

You may not have seen my post earlier, but I was already at 90% combined, so when my 30% MH rating went to 70% I became 100% P&T.