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Effective date

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SPO

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I said it in another thread, but I won my appeal at the board and was rated @ 100% p&t.  But I have an issue with effective dates.

1. I started the process in Nov 2018 with 14 issues. Got denied on all issues for no diagnosis.

2. Filed an HLR within a month of the first decision and got denied again on all 14 issues

3. file a supplemental claim a few months later.   I was awarded 2 out of 14 issues with an effective date of 11/2018 based on a C&P in 7/2020

4. I appealed the other 12 to the board about a month later.  I was just granted service connection for all 12 in 11/2021.

5. The RO rated me at 100% 12/1/2021.   A few items were 0% and effective 11/2018. Anything with 10% or higher was given An effective date of 7/2020(the c&p).

in my mind this is a continuously perused claim. Nothing went over the 1 year appeal timeline. Also based on the fact that the supplemental claim ratings, based on the same c&p as the appeal were effective 11/2018. It seems all items should be effective on 11/2018.   Thoughts?  

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For what it’s worth my BVA decision states that my symptoms developed in 2016.  2 years before I filed the claim originally.   And like I said before, the items granted from the supplemental that led to this appeal were dated back correctly 

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45 minutes ago, SPO said:

For what it’s worth my BVA decision states that my symptoms developed in 2016.  2 years before I filed the claim originally.   And like I said before, the items granted from the supplemental that led to this appeal were dated back correctly 

You probably going to have to appeal to the BVA and provide the records that show when the symptoms began.  It should be a straight forward appeal if you ask me.  The problem is many of us deal with the VA quickly rubber stamping a decision because I believe claim completion is more important than claim accuracy.

Your letter will probably have the rater citing 38 CFR 3.400 as how they came up with the effective date.  I personally think it is being misused even though the wording is clear.  Raters are ignoring the first part of the first sentence which I believe is the most important.  It states and I quote "Unless otherwise provided"   That wording is key because in my opinion that means the rater is to first make sure nothing else is required to be used for an effective before relying on 38 CFR 3.400.   For example 38 CFR 3.156(c) is clear on the effective day when new service records are available that were previously not part of the claim.   This situation would fall under  "Unless otherwise provided"

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Back to basics.

Supplemental claims require new evidence. If you have new evidence showing you deserve an earlier effective date a supplemental claim takes 3-4 months. RO should be able to award benefits up to 12 months prior to the date you submitted an intent to file (or the date the claim was submitted).

If the evidence was already in possession of the government, but they failed to ID it, a HLR "should" correct that. This is another 3-4 months. Follow the HLR w/Supl if it is denied, gathering more info and adding a lay statement pointing to the existing records that were "overlooked".

6-8 months have passed for the above. If you do have convincing info documented and still disagree with the VARO, then the next step is an appeal. If you take the evidence through appeals, it takes years.

Edited by pwrslm
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Appealing right now is very difficult to determine when the VA/BVA would get to any claim. The BVA is trying to concentrate on completing all legacy claims. It makes them look really bad that it is taking so many years to complete Legacy decisions, they created the AMA Review where claims are supposed to be faster, but they are also behind, and the 90 to 125 days are now completely out of range. You are going to get different opinions and you are going to have to decide what best applies to your particular situation. Your evidence may already prove that you met the Earlier Effective Date. This is a little confusing because there are times when a veteran may have to file multiple claims (Initial Claim, NOD, Supplemental) and in continue pursuit, the effective date should follow the initial claim but again you are going to have to do a new Supplemental or a HRL and then if they do not pay your benefits back to the BVA. If I am wrong or off, please correct me. At present there is no need to appeal your current BVA grant. The BVA only granted you service- connection and the local VA screwed up and assigned your effective date which you disagree with.  

Supplemental claims require new and or pertinent evidence changed from material evidence. The evidence does not need to be new; it can be pertinent/material. See:

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.

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

(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. 

38 CFR § 3.2500 - Review of decisions 

(h) Effective dates -

(1) Continuously pursued claims. Except as otherwise provided by other provisions of this part, including § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in paragraph (c) of this section within one year of the issuance of the decision (or the time period specified in paragraph (f) of this section, as applicable to simultaneously contested claims), provided that any appeal to the U.S. Court of Appeals for Veterans Claims must be accepted as timely by that court.

 

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Ok.  So some new, somewhat confusing info.  The VA rated me 100% p&t on 12/1/2021, effective 7/7/2020 and I received retro last week. However, they have not issued a decision letter for it from the RO.  Dav says that everything is listed as deferred and the are scheduling exams.   He said it looks like they are scheduling record review exams to evaluate if I rated more than 0% between 11/2018 to 7/7/2020.  Which would change my effective date and fix the issue, if they decide in my favor. He said he’s pretty sure, but not 100% that’s what they are doing.  Has anyone ever heard of this? 

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33 minutes ago, SPO said:

Ok.  So some new, somewhat confusing info.  The VA rated me 100% p&t on 12/1/2021, effective 7/7/2020 and I received retro last week. However, they have not issued a decision letter for it from the RO.  Dav says that everything is listed as deferred and the are scheduling exams.   He said it looks like they are scheduling record review exams to evaluate if I rated more than 0% between 11/2018 to 7/7/2020.  Which would change my effective date and fix the issue, if they decide in my favor. He said he’s pretty sure, but not 100% that’s what they are doing.  Has anyone ever heard of this? 

Based on your post it appears that the VA granted you 100% P & T with an effective date of July 2020, but you have deferred claims pending for exams that could possibly push your 100% P & T rating closer to the November 2018 effective date. This is pure speculating, but it is very possible, and you will not know until after the VA makes their decision. Each rating if rated separately could get you closer and closer to the 2018 effective date but keep in mind that even if the VA grants you a rating higher than 10% it may not result in a combined rating change and may not hit the 100% rating. With a combined rating change it should generate a retro payment. These are just examples but depending on when you filed your claims, no one knows. Example: 80 + 10% = 80% round down to 80% no change in rating no retro payment due, or 80% + 30 = 86% round up to 90% change in rating and retro payment due but not a 100% rating. Too many variables to try to figure out.

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