How will this work? (Supplemental Claim)

[Brian360]

Hello, 

Thanks to the help offered here a couple weeks ago I have now submitted a Supplemental Claim in relation to my original claim denials from when I first got out of the service in 2015 (filed within the first year of separation). My question now is how will this work if they find that I should have been service connected dating back to my separation? For context, I have filed to reopen with recently found STRs on my shoulders, collar bone, and nerve issues related to my hands and wrists. There is a total of 7 reopened claims now pending but they have changed the wording on four to say "Median Nerve Paralysis". C&P exam date is yet to be determined.

My question is, if any of these claims are found to be service connected, and dating back to my 2015 separation, how will they determine an appropriate rating for the past 6 years? I did have a C&P exam done initially but the examiner did not have time to cover everything I had claimed (still got denials) and I for the life of me cannot remember if x-rays were taken of my shoulders and/or ROM testing done. I can't see for myself as I do not have my C-File.

In short, after the upcoming C&P exam is completed, will the VA use these results for rating purposes going back to 2015 or only from my recent filing date and going forward? How will they determine my rating for the past 6 years if they find I should have been service connected when I got out? I have a feeling I will be given 0%'s retroactively and then given a rating for going forward based on the upcoming exam. My submitted STRs did note pain though.

Any insight is much appreciated!

[pacmanx1]

1 hour ago, Brian360 said:

Any insight is much appreciated!

It is way too early to try to figure out what the RO (REGIONAL OFFICE) would or would not do. Unfortunately, you are going to have to wait until you get a decision and go from there. The reason I say this is because the RO may only grant your claim back to your filing date and no further but then again, they may pay you your correct effective date, we don’t know and can’t say. The only thing we can say is that once you get your decision, if you disagree you can file a disagreement. As to a rating percentage. What should happen is the RO will most likely send you to a new C & P exam and the rater can look through your records to produce a proper percentage or they could just give you a 0% and increase it over time called a “STAGED RATING,” you can look that up but once again it is way too early. Make sure you have all your current treatment records in with your claim.

Make sure you read through 38 CFR 3.156 for reopening claims and 3.400 for effective dates. The RO has denied or screwed up a lot of effective dates so make sure you are prepared to argue your claim and that you may have to file an appeal to the BVA. Even with all your evidence the RO may still deny your claim so just be prepared.

[brokensoldier244th]

If you conclusively documented that the information was present in your STR's and was missed then I would assume that it would go back to the original date because of new and relevant evidence that was not properly evaluated, but I'm not a rater, either.

Did you just file a supplemental, or did you allege CUE  and request an EED as well? They could assign 0% based on pain only, if there were no other indications of disabling characteristics noted in the Sep exm or the C&P based on 38CFR part 4 (the ratings schedule). The reason I say that is because of below- if you didnt have a continuing appeal for the whole time then the RO decision would be considered final after a year. 

 

V.ii.4.A.7.a.  Requests for an Earlier Effective Date

In Rudd v. Nicholson, 20 Vet.App. 296 (2006), CAVC held that VA has no authority to adjudicate a “freestanding” request for an earlier effective date associated with an RO decision that has become finally adjudicated under 38 CFR 3.160(d).   Although VA cannot consider a request for an earlier effective date on a finally adjudicated RO decision, the claimant may allege CUE with respect to the assignment of the effective date in that prior decision.  For the CUE claim to be considered valid, the claimant must specify the factual or legal errors at issue.    Example:  A claimant’s statement that “my effective date is wrong, or “I want an earlier effective date” does not sufficiently specify the factual or legal error at issue.

[broncovet]

Effective dates are one of the more complex areas of Veterans law.  I agree with Brokensoldier, that submitting a freestanding effective date claim is unlikely to work, for reasons he stated.  

As much as we dont like this, there is an order, that cant easily be changed in Vets claims:

1.  Service connection or no. 

2.  Disability percentage.

3.  Effective date(s).  

      You see, neither the disability percent nor the effective date matter if you are not SC.  

     They pretty much MUST be in this order, above.  

    Now, you brought up symptoms, that were not in your file earlier.  Well, that is a 38 CFR 3.156 (reopened claims).  

    Also possible, or likely, upon appeal or CUE filing, is a Fenderson (staged) rating.  

    Allow an example of a Fenderson rating.  

    You apply for benefits for knee issues, within a year of exit from service. 

    But that was 15 years ago!  And, your knee did not bother you much, but it got progressively worse, and you had to have a TKR (total knee replacement) in 2012.  

    If Service connected, a Fenderson rating could rate you at 10 percent from your service date to 2012, and then 30 percent, after you got your Total knee replacement.  

     You can even have more than one "bump up" if your symptoms progressively decline, consistent with the rating criteria.  

      My advice is two fold:

1.  Check for CUE.  If you provide some details, we may be able to help there.  Remember, Cue is based on the evidence "at that time", so if you add that missing evidence, its a reopening under 38 CFR 3.156, and not necessarily a CUE.  

2.  If there is no CUE, then you will need to wait for the decision, and, if you dispute the effective date (absent a CUE ) then appeal it.  

Edited December 23, 2021 by broncovet

[pwrslm]

" if any of these claims are found to be service connected, "

When you have a rating decision, then you will know. At this point it is all speculation.

BrokenSoldier gave you the gist of the issue, in that  new and relevant evidence is presented based on the original decision. That evidence was or should have been present in your records, and the RO had the duty to gather those records. Because the records were in the possession of the US Govt at the time of the original decision, but not applied to the facts in your original claim, you should win the original effective date. The VA's/governments error goes in your favor. You have taken a big step toward this point by getting approved to reopen the issue in your supplementary claim.

Broncovet is outlining the fight if the VARO denies your effective date.

Remember this is all dependent upon if these claims are found to be SC. If your new evidence puts the question in equipoise (50/50), you win. Also, never underestimate the value of a lay statement. It can mean the difference of 10% and 0% for each condition (x 7) because you are competent to describe the symptoms of pain. If they approve SC it "should" be from the day your ETS became effective.

Edited December 23, 2021 by pwrslm