Supplemental Claim

[deedub75 105]

I am at a complete loss here.  I submitted a supplemental claim in 2/3/2020 for where I claimed my back and both knees secondary to bilateral pes planus and right ankle injury.  The claim moved quickly and I had C&P exams on 3/13/2020.  I checked on eBenefits today and saw that they granted back and both knees and even added 4 more contentions that I had not claimed.  However, they made 2/3/2020 the effective date for all contentions which completely defeats the purpose of getting earlier effective dates for all my percentages.  I called DAV and they told me that they indeed finalized the claimed with 2/3/2020 as the effective date.  

These claims go back as far as around 2011 or 2012 and it ended up in appeal on 2013.  I had a DRO review it and it was denied again in 2014 so I sent it to BVA where it sat there until they were remanded in 2017.  I asked for a HLR in RAMP because I didn't want to wait for legacy BVA.  It was denied again in July 2019 and so I got a nexus letter from my personal ortho doctor and send it in as a supplemental claim in Feb 2020.  So I've basically kept these claims open since at least 2012.  I have no idea why in the world they would put my effective date as 2/3/2020 on the date they received my supplemental claim.  DAV says I should just send it directly to BVA and and ask for earlier effective date and they will sort it out.  They said if I send it for a HLR they will just regurgitate the same info and leave the date the same.

What say you?

[JKWilliamsSr 107]

If I am reading this correctly you had your final denial in July 2019.  The question is if you appealed that decision or not because that is going to be key here.  If you did not appeal that decision but instead filed a new supplemental claim they effective date is going to be the date the supplemental claim was filed. 

[deedub75 105]

16 minutes ago, JKWilliamsSr said:

If I am reading this correctly you had your final denial in July 2019.  The question is if you appealed that decision or not because that is going to be key here.  If you did not appeal that decision but instead filed a new supplemental claim they effective date is going to be the date the supplemental claim was filed. 

That makes no sense because the VA recommends filing a supplemental claim within one year of the date of your decision on your decision letter.  This protects the most advantageous effective date for you, if you claim is successful and you may be eligible for retroactive benefit payments.  This comes directly from va.gov website.  

If what you're saying is correct, would the same apply for a higher level review?  I entered RAMP and asked for a HLR on 10/12/18 and it was decided on 7/9/19.  Had they granted from the HLR would effective date have then been 10/12/18?  I filed the supplemental in response the the HLR denial.  

Thank you for your response!

[JKWilliamsSr 107]

11 minutes ago, deedub75 said:

That makes no sense because the VA recommends filing a supplemental claim within one year of the date of your decision on your decision letter.  This protects the most advantageous effective date for you, if you claim is successful and you may be eligible for retroactive benefit payments.  This comes directly from va.gov website.  

If what you're saying is correct, would the same apply for a higher level review?  I entered RAMP and asked for a HLR on 10/12/18 and it was decided on 7/9/19.  Had they granted from the HLR would effective date have then been 10/12/18?  I filed the supplemental in response the the HLR denial.  

Thank you for your response!

I honestly believe the supplemental claim lane is meant the screw veterans over.   In the past you were able to reopen previously denied claims if you had additional evidence and could start it off with an intent to file.  Now you can no longer do that.  In order to reopen a claim that was previously denied you would have to file a supplemental claim if you were not in the appeal period. 

Now with that said your comments make sense and I believe you are correct with the supplemental claim being the next step in the appeal process if your HLR was denied.  Since he filed it after the denial date then it should still be an actual appeal. 

Edited March 17, 2020 by JKWilliamsSr

[Guest]

54 minutes ago, deedub75 said:

I am at a complete loss here.  I submitted a supplemental claim in 2/3/2020 for where I claimed my back and both knees secondary to bilateral pes planus and right ankle injury.  The claim moved quickly and I had C&P exams on 3/13/2020.  I checked on eBenefits today and saw that they granted back and both knees and even added 4 more contentions that I had not claimed.  However, they made 2/3/2020 the effective date for all contentions which completely defeats the purpose of getting earlier effective dates for all my percentages.  I called DAV and they told me that they indeed finalized the claimed with 2/3/2020 as the effective date.  

These claims go back as far as around 2011 or 2012 and it ended up in appeal on 2013.  I had a DRO review it and it was denied again in 2014 so I sent it to BVA where it sat there until they were remanded in 2017.  I asked for a HLR in RAMP because I didn't want to wait for legacy BVA.  It was denied again in July 2019 and so I got a nexus letter from my personal ortho doctor and send it in as a supplemental claim in Feb 2020.  So I've basically kept these claims open since at least 2012.  I have no idea why in the world they would put my effective date as 2/3/2020 on the date they received my supplemental claim.  DAV says I should just send it directly to BVA and and ask for earlier effective date and they will sort it out.  They said if I send it for a HLR they will just regurgitate the same info and leave the date the same.

What say you?

IMHO, VA used this evidence as new and awarded you your claim.  Yes, your claim has been continuously on appeal but did you have an equivalent evidence in your records back in 2011 and 2012.  If there was no nexus back in 2011 and 2012 how can VA give you an EED? Again IMHO, I think you would need something in your prior records that proved you met this rating.

[deedub75 105]

33 minutes ago, pete992 said:

IMHO, VA used this evidence as new and awarded you your claim.  Yes, your claim has been continuously on appeal but did you have an equivalent evidence in your records back in 2011 and 2012.  If there was no nexus back in 2011 and 2012 how can VA give you an EED? Again IMHO, I think you would need something in your prior records that proved you met this rating.

I get what you are saying, but these are secondary claims and the nexus has always been there.  I filed SC for bilateral pes planus/plantar fasciitis back in 2012 and I filed for my knees and back secondary to the the pes planus/plantar fasciitis.  They initially denied my foot claims so of course they denied all of my secondary claims.  I appealed asking for a DRO and the foot claims were approved but the knees and back were still denied.  They claimed I had a normal gait so it wasn't possible for knees and back to be messed.  They ignored the fact that my Army exit exam clearly stated that I had an abnormal gait. I appealed and sent in a copy of my exit exam but it was denied again because the examiner said my gait wasn't bad enough.  She said the literature said it wasn't possible for an abnormal gait to cause knee and back issues.  The BVA judge was skeptical of all of this and remanded it back to that examiner stating that didn't take into account that I clearly had an abnormal gait and the examiner provided no evidence of the literature that states that abnormal gait can't cause knee and back issues.  It doesn't exist!  I opted into RAMP knowing that I could always send it back to BVA.  The same examiner denied it again now saying that it was my age and my weight that caused my knee and back issues.  I was only like 35 years old and about 170 pounds when I filed these claims back in 2012.  I filed a supplemental with a nexus to get it out of the hands of the same advisor who kept denying my claim an it worked.  

DAV said just send it to BVA and they will go back and review all of my claims and fix it.  

[deedub75 105]

1 hour ago, JKWilliamsSr said:

I honestly believe the supplemental claim lane is meant the screw veterans over.   In the past you were able to reopen previously denied claims if you had additional evidence and could start it off with an intent to file.  Now you can no longer do that.  In order to reopen a claim that was previously denied you would have to file a supplemental claim if you were not in the appeal period. 

Now with that said your comments make sense and I believe you are correct with the supplemental claim being the next step in the appeal process if your HLR was denied.  Since he filed it after the denial date then it should still be an actual appeal. 

I worked in the VA years ago processing claims.  I asked one of my old coworkers who is a manager there now.  He said my claim should go all the way back to the original date that it was filed as long as I filed things timely.  

[Buck52 3,236]

Just my 2 cents

I believe your  co worker manager is correct ,  when secondary claims are awarded  theY then become  in part of the original s.c. disability  and should keep the original claim date or EED.

[Guest]

BVA may or may not fix this. I understand that this evidence helped you win your service connection but as I stated VA will try their best to say that in 2011 and 2012 this evidence did not exist and you did not meet the rating criteria. Of course you have to do what you have to do but IMHO a HLR/DRO may not grant you your EED. Yes, then again the HLR/DRO might just grant what you want. My post is just that my opinion. I am not trying to discourage you, I am just telling you what I think happened. The fact that you might have to continue your claim back to BVA and beyond if you choose to.  VA is very sneaky and you have to prepare yourself for the next step. I am not sure what your rating is but granting this claim back to 2011 and 2012, VA knows that they would have to pay you the difference of each month over the last few years and VA will not do that without a fight.

[deedub75 105]

14 hours ago, pete992 said:

BVA may or may not fix this. I understand that this evidence helped you win your service connection but as I stated VA will try their best to say that in 2011 and 2012 this evidence did not exist and you did not meet the rating criteria. Of course you have to do what you have to do but IMHO a HLR/DRO may not grant you your EED. Yes, then again the HLR/DRO might just grant what you want. My post is just that my opinion. I am not trying to discourage you, I am just telling you what I think happened. The fact that you might have to continue your claim back to BVA and beyond if you choose to.  VA is very sneaky and you have to prepare yourself for the next step. I am not sure what your rating is but granting this claim back to 2011 and 2012, VA knows that they would have to pay you the difference of each month over the last few years and VA will not do that without a fight.

All thoughts are taken into consideration here.  It will go back the BVA since I have nothing to lose anyway.  When the BVA remanded it back to the original examiner in 5/18, he was very critical of the examiner's rationale.  

"The Board finds the examiner's rationale inadequate for decision making purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The examiner's rationale notes that medical does not support a link between the Veteran's conditions and his right ankle disability, but the examiner does not indicate what research literature is used in forming her opinion.  Further, the examiner does not provide any medical rationale explaining why the Veteran's right ankle disability, and noted antalgic gait, did not cause or aggravate his current conditions.  As such, an addendum opinion is needed to adequately address medical reasoning behind the VA examiner's May 2017 opinion."

I went through RAMP looking for a quicker decision.  I didn't want my appeal taking an additional 3 years since in the legacy appeals system there were about 150,000 claims ahead of me.  My mistake!  I did get a quicker (wrong) decision.  The same NP examiner basically wrote the exact same medical opinions that the BVA said were inadequate.  Since I went through RAMP, I don't think the examiner was even required to follow the guidance in the remand letter.  At least this is what someone at DAV told me.  I feel like the BVA judge was leaning towards granting my claims.  I may try to upload a copy of it.  When I read it I was pissed because it was remanded but I was like wow he really came down on the examiner. 

[Guest]

8 hours ago, deedub75 said:

I went through RAMP looking for a quicker decision.  I didn't want my appeal taking an additional 3 years since in the legacy appeals system there were about 150,000 claims ahead of me.  My mistake!  I did get a quicker (wrong) decision.  The same NP examiner basically wrote the exact same medical opinions that the BVA said were inadequate.  Since I went through RAMP, I don't think the examiner was even required to follow the guidance in the remand letter.  At least this is what someone at DAV told me.  I feel like the BVA judge was leaning towards granting my claims.  I may try to upload a copy of it.  When I read it I was pissed because it was remanded but I was like wow he really came down on the examiner. 

I swear you guys are reading my file, so here we go again. Please be forwarded that even though your claim was remanded that does not mean when it returns to BVA it will be granted.  I was in a similar situation a few years ago and I was shocked that the BVA judge was on my side at least I thought.  When my VARO rejected and continued to deny my claim, the BVA judge changed his mind and denied my claim also.  I had to get a lawyer and continued my claim/appeal to CAVC where it was remanded by them and finally BVA granted my claim. Of course this only added more years. 

[deedub75 105]

22 minutes ago, pete992 said:

I swear you guys are reading my file, so here we go again. Please be forwarded that even though your claim was remanded that does not mean when it returns to BVA it will be granted.  I was in a similar situation a few years ago and I was shocked that the BVA judge was on my side at least I thought.  When my VARO rejected and continued to deny my claim, the BVA judge changed his mind and denied my claim also.  I had to get a lawyer and continued my claim/appeal to CAVC where it was remanded by them and finally BVA granted my claim. Of course this only added more years. 

My claim was finally approved because I got my own nexus letter and submitted it with a supplemental claim. The issue I have now is that they made the effective date the date of the supplemental claim when it should have been the original date I filed the claim. From my experience from my time working for the VA, it looks like an error. I have a couple of friends still working there and they both told me the date should go back to the original file date as long as I filed everything timely which I did. 

[Guest]

Yes, I agree. After my claim was remanded by CAVC, BVA granted it and remanded it back to the VARO who not only low balled my rating but screwed up my effective date. I finally won my rating but not my effective date so my claim went back to BVA and finally won my EED from my original claim.

[deedub75 105]

On 3/18/2020 at 7:01 PM, pete992 said:

Yes, I agree. After my claim was remanded by CAVC, BVA granted it and remanded it back to the VARO who not only low balled my rating but screwed up my effective date. I finally won my rating but not my effective date so my claim went back to BVA and finally won my EED from my original claim.

It's sad the we have to go through all of this just to get a correct decision.  To know that you've fought and waited for years of claims, denials, appeals, remands, more denials and finally an approval only to have that approval be stamped with the incorrect date.  

I can honestly say that when I worked for the VA processing claims, we didn't intentionally try to screw any veterans over.  Unfortunately, with the huge backlog they are pushing claims through so fast that mistakes are being made.  Unless the processors are new employees, there is no one checking their work before it is finalized. And once the mistake laden claim is completed, it leaves veterans with no recourse other than to file appeals.  If you have a VSO, there used to be like a 48 hour grace period once a claim is completed and that time was for the VSO to review it.  The VSO oftentimes just stamped it and sent it thorough.  I remember sometimes they would have us walk over to the VSO office after we finalized a claim to have them basically waive the 48 hour grace period.  

[Guest]

3 hours ago, deedub75 said:

It's sad the we have to go through all of this just to get a correct decision.  To know that you've fought and waited for years of claims, denials, appeals, remands, more denials and finally an approval only to have that approval be stamped with the incorrect date.  

OK, I did have a VSO. I had to fire him after a few years because it felt like he was a part of VA.  He even told me to drop my claim. I decided to fire him and go on myself.  Now I did get a lawyer for CAVC and he and VA lawyers agreed that my claim should be service connected. So my claim was remanded and he was gone. The rest was BVA granting my claim and my VARO low balling my claim due to the fact that I was already 100%.  Even being rated 100% scheduler, there was the retro/back pay that was very interesting to me.

3 hours ago, deedub75 said:

I can honestly say that when I worked for the VA processing claims, we didn't intentionally try to screw any veterans over.  Unfortunately, with the huge backlog they are pushing claims through so fast that mistakes are being made.  Unless the processors are new employees, there is no one checking their work before it is finalized. And once the mistake laden claim is completed, it leaves veterans with no recourse other than to file appeals.  If you have a VSO, there used to be like a 48 hour grace period once a claim is completed and that time was for the VSO to review it.  The VSO oftentimes just stamped it and sent it thorough.  I remember sometimes they would have us walk over to the VSO office after we finalized a claim to have them basically waive the 48 hour grace period.  

I don't know when or how long you worked for the VARO but remember all those employee's contracts you signed to keep your employment and to agree and go alone with whatever your coach/supervisor/management decided. I have seen the whole picture. I will admit that there was a mistake in my claim but no one wanted to correct it.  Even before my claim went to CAVC, I knew it was military related by all of the evidence I had in my military records and my post military records at the VAMC. I may be stupid but I am not that stupid. What really got under my skin to make me fight so much was an individual at the VARO that lied and I know they lied straight to my face to discourage me. I even think this individual removed documents from my file but they were too late because I already had a copy of my file completely date stamped. When I filed my claims I always made copies from my personal copy and submitted them as evidence. Evidence don't lie and continuity will kill any negative report. I could go on but I guess the bottom line is get mad, get really mad and then channel that negative energy into a positive energy and fight for what you think is right. I always did like the underdog.

[Kuwaitin08 23]

I had a similar thing happen to me. I had to submit a supplemental claim again to get the correct effective date for retroactive pay. I had to write a complete outline to show how they made a mistake.

Good luck! It will take a month or two but they'll fix it.

[deedub75 105]

On 3/20/2020 at 11:07 AM, Kuwaitin08 said:

I had a similar thing happen to me. I had to submit a supplemental claim again to get the correct effective date for retroactive pay. I had to write a complete outline to show how they made a mistake.

Good luck! It will take a month or two but they'll fix it.

That's good to know.  I've been going through my records trying to figure out the best way to go about fixing this.

[Kuwaitin08 23]

On ‎3‎/‎22‎/‎2020 at 9:15 PM, deedub75 said:

That's good to know.  I've been going through my records trying to figure out the best way to go about fixing this.

You could submit a new supplemental claim with the evidence and outline to settle it or you could submit a CUE (Clear Undeniable Error). Berta could assist with a CUE.

Keep us up to speed on how it goes.

[deedub75 105]

20 minutes ago, Kuwaitin08 said:

You could submit a new supplemental claim with the evidence and outline to settle it or you could submit a CUE (Clear Undeniable Error). Berta could assist with a CUE.

Keep us up to speed on how it goes.

I haven't even gotten the award letter from the VA yet!  I'm gonna go with the supplemental but I wish I could submit a higher level review with my evidence but that's not allowed.  The HLR would go to a DRO and the supplemental would go to a lesser experience rater.  

[AllTheWay 19]

Yeah that statement is so true Deedub but thats how the new system is making it a longer process. Imo, I think you are going about it the right way by doing a supplemental claim with new evidence, if thats denied then go HLR I think.

[deedub75 105]

I was going through the M21-1 of the VA and found this:

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 finally got the award letter today in the mail.  According the above CFR, the rater clearly made an error in my effective date.  I've been continuously prosecuting these claims with a combination of BVA, HLR, and supplemental claims since 2010 and I was always within the deadlines.  

I've polled a variety of people from Hadit, to DAV, to some of my old coworkers who are still processing claims at the VA.  Some say go straight to BVA.  Some say make an outline of all of my appeals dates and send that in with a supplemental claim.  One of my coworkers who is acting as a DRO now says go the HLR route because the claim will go to a DRO.  Right now, I still don't know what I'm gonna do.