Supplemental Claim

[deedub75]

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?

[AllTheWay]

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]

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. 

 

[Guest]

The problem is the DRO is the same as the HLR and they could grant your EED.  The DRO has the power to grant but they seem to just rubber stamp a denial and force claims to go to the BVA.  Hate to say it but it is a crap shoot, yes you are correct, the continues pursuit of a claim warrants the earliest effective date but how far you have to appeal  is unknown.  The HLR is supposed to take several months between five and six months but the BVA will take years.  You could do both because if you go the HLR route and disagree, you still can appeal to BVA.  Even though BVA granted my claim, the local VARO denied my effective date so my claim had to go back to BVA to win my earliest effective date.

[GBArmy]

For what it's worth, I would just go BVA. If there are a lot of back and forth actions, even if the HLR wasn't going to low-ball you, he could just get it wrong anyway. If you do and the decision is remanded and you don't like the answer, you can still go back to the BVA at the head of the class (go to the head of the docket again.) I'm not a real big fan of HLR unless the appeal is just blatantly obvious that the original decision was an error. It will take longer, as Pere has advised, but eventually you have a better shot at getting a correct decision. IMHO.

[deedub75]

1 hour ago, pete992 said:

The problem is the DRO is the same as the HLR and they could grant your EED.  The DRO has the power to grant but they seem to just rubber stamp a denial and force claims to go to the BVA.  Hate to say it but it is a crap shoot, yes you are correct, the continues pursuit of a claim warrants the earliest effective date but how far you have to appeal  is unknown.  The HLR is supposed to take several months between five and six months but the BVA will take years.  You could do both because if you go the HLR route and disagree, you still can appeal to BVA.  Even though BVA granted my claim, the local VARO denied my effective date so my claim had to go back to BVA to win my earliest effective date.

They are processing supplementals and HLRs in record time now.  They have cut down the number of new claims and they now moved those extra people to clear out the appeal backlog.  My friend there got temporarily promoted to a DRO to help knock down the appeals backlog.  

I faxed my supplement claim in on 2/3/2020.  I had exams on 3/13/2020 and it was completed on 3/17/2020.  Probably why they got the effective date wrong.  

[bellrungboxer]

1 hour ago, deedub75 said:

They are processing supplementals and HLRs in record time now. 

You got your supplemental completed in record time and it wouldn't be a surprise that they did not do any research on it. If you have the evidence to show the effective date you have and they are moving at record pace on supplementals, what is the cost of going that route first? 

I will admit though, I'm a novice at this and have only done supplementals because I have wanted to add to my claims to weigh in my favor prior to going the other routes.