Jump to content

Denied Higher Level Review


Recommended Posts

i submitted the following for a higher level review to request an earlier effective date, but was denied.  Any suggestions I’m service connected at 20% for my shoulder.  
 
I submitted a disagreement with the rating decision dated 12/16/2020 with the effective date of my service-connected shoulder rotator cuff that is currently 06/08/2020. The rating decision included my request under evidence (Correspondence, conducted December 8, 2020), which was my request for an effective date change to my original submission on or about Oct 2006.  The Department of Veterans Affairs changed the effective date to Jun 8, 2020, however there is no explanation why my request for an earlier date (on or about Oct 2006) based on new evidence was not addressed.  
 
38 CFR states a retroactive evaluation of disability resulting from injury subsequently service connected based on the new evidence from the service department and must be supported adequately by medical evidence. New medical evidence (MRI) was submitted, and service connection was confirmed based on that new evidence.   Additionally, documentation errors in my medical records (04/ 1999, 09/17/1999) while on active duty shows injury to my left shoulder when in fact it was my right shoulder.  I requested a records correction through the VA to amend my records to reflect my right shoulder injury. This evidence was not previously part of the actual record before agency adjudicators in 2007 or subsequent reviews. 

 In accordance with 38 CFR 3.156 C, I’m requesting the effective date of my right shoulder service-connected disability be changed to the date of my original submission on or about Oct 2006 .   In my opinion the new evidence raises a reasonable doubt, andthe decision should be resolved in my favor.   Furthermore, the date of my right shoulder injury should be back dated to my original service-connected disability submission (Oct 2006) and any pay be retroactive if my overall rating changed in that period to present.  

 I believe this request should be considered due to the possibility the VA C&P exam failed to property diagnose my shoulder injury during my C&P 11/2006. Additionally, if an MRI were performed at that time it is likely the damage would have been shown.  I also submitted my original claim well within the 1-year time frame from my exit from the service.

 

Link to comment
Share on other sites

  • Moderator

You have it about right, but its a bit more complicated than "just" the date you FIRST filed.  The general rule is that your effective date is the later of "facts found" or the claim date.  

What date did your doctor say you became disabled?  

Often the VA uses the date of the c and p exam, which is almost always incorrect.  After all, were you healthy until you went to a c and p exam and then got disabled during the c and p exam?  Highly unlikely.  

But..Gracie..(I love that name..we had a dog named gracie)..there is no Santa Claus, and VA would rather send all their VA executives to the dentist for a root canal with no pain meds than grant eed's on HLR.  

You are gonna have to appeal again to the BVA, this time.  I would have recommended skipping HLR the chances of approval are so low as to not be worth it.  

If you are pro se, you need to do some serious research and reading to win at the BVA.  Ditto if you have a VSO.  Since we are talking about 15 years retro, VA is gonna fight you tooth and nail, so be prepared for battle.  

Begin with reading the effective date regulations, and check to see which of these You think applies to you.  

Now, you cited 38 CFR 3.156 C which is "new SERVICE RECORDS" which is not the same as 38 CFR 3.156 B, new evidence.  

The difference between new service records and new evidence (other than military service) can be huge.  

Quote

38 U.S. Code § 5110 - Effective dates of awards

prev | next
(a)
(1)
Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:
(A)
A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
(B)
A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
(C)
A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
(D)
A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.
(E)
A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.
(3)
Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.
(b)
(1)
The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.
(2)
(A)
The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.
(B)
For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.
(C)
This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.
(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.
(4)
(A)
The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.
(B)
A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.
(c)
The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.
(d)
The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.
(e)
(1)
Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.
(2)
In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.
(f)
An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.
(g)
Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.
(h)
Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.
(i)
Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.
(j)
Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.
(k)
The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.
(l)
The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.
(n)
The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

 

  • Like 2
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Ads

  • Ads

  • Ads

  • Our picks

    • I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 
      • 20 replies
    • 5,10, 20 Rule
      The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
        • Thanks
        • Like
      • 58 replies
    • Post in New BVA Grants
      While the BVA has some discretion here, often they "chop up claims".  For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.  

      I hate that its that way.  The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.  
        • Like
    • Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!

      My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.

      Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
        • Like
      • 18 replies
    • I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even  reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and  nothing about stressor,
  • Ads

  • Popular Contributors

  • Ad

  • Latest News


  • veteranscrisisline-badge-chat-1.gif

  • Fund HadIt.com

    406%
    $6,103.00 of $1,500.00 Donate Now
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines