Supplemental Claim: Entitlement Arouse Effective Date

[LegacyArmy]

Hello Everyone!

Posting here for the first time! I have been reading this forums for quite some time and gathered ton of information on here and regret using third party services to get my rating pushed upwards but, that is a discussion for another day and probably no point in thinking about it now. Anyways, I would like to get some advise from all the knowledge folks here in terms what my next step should be.

First of all, I am currently rated 100% P&T as of June 10, 2020. I have been rated 90% since 2011 Dec. I was never thinking about 100% until recently when I filed for a neck issue which was rated at 30% and then I got another 10% secondary condition based on the neck condition in june 2019. Earlier in feb 2019,  I filed for increase for migraines (rated 10% now) and Trapezius strain condition ( rated at 0% now) and the c& p exam conducted by the VA was what appears to me is  favorable and the doctor recommended increase ( ordered and looked in my C-file recently which I got it in 10 months after I filed for it) but, surprisingly VA denied the increase in June 2019 saying that even though the condition has been improved they can not determine it to be a sustained improvement and kept the 10% rating. I got some medical opinions and records and filed for a supplemental claim in  April 2020 and tried to preserve the effective date of Feb 2019. The supplemetal claim has been approved now and the rating has gine from 10 to 30% and with that change, I am now 100% P&T.

I strongly beleive after looking at my c-file, VA should have approved my claim for increased rating for Migraines and should have awarded 100% back in June 2019 with an effective date of feb 2019 especially after the positive c&p for feb 2019 increase claim for migraines.

In this case, what do you guys suggest? Higher Level Review or BVA appeal, I am determined to fight this on my own if this has to go to BVA since I believe that I have a strong case especially with positive c& P exam back when I originally claimed the increase.

 

Also, I am planning to file another new claim "Orthostatic Hypotension" which I saw in my c-file, I visited doctor couple of times while I was in active duty and when I originally claimed after getting out of army, I filed it as hypertension and was denied and I never appealed it but, I want to file it as  what the doctor described it as "Orthostatic Hypotension disorder", since I am already @ 100%, do you guys think filing another new claim is asking for trouble? I am nervous about it but, I do experience the diziness frequently and want to file for it. Any suggestions or advise here?

 

 

[broncovet]

I suggest you file an appeal to the BVA disputing the effective date.  It helps to understand effective date rules. 

Generally your effective date will be the "later" of the date of claim, or the date the doc said you were disabled. (facts found). 

Did your c and p doc give an "onset" or effective date? (Re read your exam)  Sometimes they do.  Its highly unlikely you went into the docs office and you "suddenly increased" at the c and p exam.  Instead, the doc read your records and should have given his opinion on when your increase occurred.  If the doc did not do that, the VA often uses the date of the exam.  

You "may" need an IMO to opine "when" your increase occurred, that is, your migraines became worse on dd-mm-yy.  

BUT WAIT, there is more!  

In claims for increase, the VA is supposed to give you an effective date up to a year earlier.  (like they did with me, when I appealed my effective date to the BVA).

Regulations for effective dates are here.  You should read these to see if any others of these apply to you:

https://www.law.cornell.edu/uscode/text/38/5110#:~:text=The effective date of the award of any benefit or,marriage%2C birth%2C or adoption.

Because this is an INCREASE this should apply to get you an earlier effective date:

Quote

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

 

[Buck52]

I agree with broncovet  he is right on on this.

Heed his Advise.