HLR or back to board

[SPO]

As of today, my appeal was officially closed.  Overall I won.  I was granted 100% P&T, even after some additional exams.  However they effective date only went back to July 2020 (date of my last c&p),  I originally submitted in November 2018.  So missing close to 2 years of pay.   The supplemental claim which this appeal was based on did grant me a couple items, which were dated all the way back to November 2018.   That decision stated this was because the claim was continuously pursued. My appeal was filed less than a month after the supplemental decision, so in a timely manner. This appeal implementation decision did not use that logic and decided the date of the c&p was the first time they had evidence (I was given 0% rating from November 2018 to July 2020 on most items).  Now the question is do I HLR and try to argue they used 2 different methods to determine effective date based on the same evidence, or take it right back to the board?  one guy at DAV said take it to the board so they don’t mess with anything else, but I’m not sure if there is any truth in that.

[pacmanx1]

I normally post your claim your call. The reason I do this is because I am tired of the RO, and I do not think they will do right by my claims. What happened to me is that I am 100% scheduler P & T. The BVA granted me a separate new rating not included in my combined 100% rating and sent it to the RO to rate and assign an effective date. The RO low balled my rating, and I immediately filed a NOD, and the RO increased my rating but assigned the effective date of my NOD (NO RETRO). I filed a second NOD, and the RO decreased my rating (ILLEGALLY) and assigned the effective date of my second NOD. I had to file a third NOD and this NOD went back to the BVA where they reviewed my entire file and granted my original claim all the way back to 1998. My decision made the RO restore my increased rating and determine if my initial rating should be increased. Well, the RO did everything but increase my initial rating and sent my claim back to the BVA where it has been sitting and appears to be lost. I am still waiting for my final BVA decision that should grant my rating to my effective date. This claim has not only been in continued pursuit, it is/was based on 38 CFR 3.156 new evidence not considered, since the BVA accepted my new evidence then the RO must review the entire record both old and new evidence, but they don’t want to make the decision and force my claim to go back to the BVA.

[SPO]

This is out of the M-21 for effective dates.  My take is that the VA has to establish for sure that I didn't meet the criteria for that rating at the date of receipt in order to not use it as the effective date.  The did give me a C&P shortly after the date of receipt, which I disputed in the supplemental claim because she ignored diagnosis paperwork and didn't use a goniometer, and didn't even look at all my claimed joints.  I'm assuming they are using this exam to say I didn't rate above 0% from the start.   Looking for the best argument to get them to overturn.

• When applying the general rule, the assignment of an effective date based on date entitlement arose being later than the date of receipt of the claim is only appropriate when the evidence clearly establishes that the entitling criteria were not met as of the date of receipt of the claim. 

 

Also, here is a copy and paste out of my supplemental decision for why they went back to the date filed for one of the items I was granted at that time.  In my eyes, this mean the VA acknowledged that they could not use date entitlement arose instead of date filed, and they regulation should have been applied in the same manner for subsequent decisions using the same evidence.

"An evaluation of 20 percent is assigned from November 16, 2018, which is the date we received
your intent to file prior to receipt of the initial claim regarding this condition. Per VA
regulations, 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 within one year of the issuance of
the decision. (38 CFR 3.2500) When a claim of service connection is received more than one
year after discharge from active duty, the effective date is either the date VA received the intent
to file (if the claim is received within 1 year of the intent to file), or the date VA received the
claim. (38 CFR 3.155, 38 CFR 3.400) Since this issue/claim has been continuously pursued, an
effective date of November 16, 2018 is warranted."

Edited February 3, 2022 by SPO

[Vync]

@pacmanx1I had something like that happen about 10 years ago. The VA sent a proposal to reduce and I promptly responded with evidence to justify continuing the rating %. Next letter I got was a decision reducing my rating % saying I never sent any evidence. I sent my return receipt card proving they received it, but they simply said I sent them something. I felt I was deemed guilty before proving my innocence. I got a paper copy of my c-file in the mail later and found it was stamped on the back with a date matching the receipt card. Took them about two months to fix it and another month for the retro to be applied.

In many cases, the person working claims now relies on search features to locate terms which might not always be typed correctly. However, I have a feeling many of your older records are handwritten, like mine, which are difficulty and nearly impossible to search unless done manually. They rely on the searches because they are under pressure to turn around claims as quickly as possible. 

 

@SPOI believe your quote from M21-1 is spot on. Look up the regs requiring goinometer use and cross those with the presumption of regularity which says government employees are assumed to have performed their duties adequately. Your lay statement indicating they did not use a goinometer and failed to measure all claimed joints is direct eyewitness proof that presumption of regularity did not apply here. That should effectively classify the C&P exam as being inadequate.

I hope you don't have to go through all the red tape I endured, but perhaps a similar result will occur. My initial claims were filed in 1995, denied instantly, and then appealed to the BVA who in 1997 ordered C&P exams be performed. More denials despite the evidence being solid, so back to the BVA who determined the 1997 exams were inadequate. They ordered another round of exams which happened in 1999. In early 2000, I was finally granted SC with retro going back to 1995. They used the date I left the service because I had filed just a couple of months after getting out. In 2008 I filed more claims which were finally decided in 2013. The VA granted be an effective date of 2008 when I filed. Some of the claims were staged because they were increases. The VA simply used my medical records to determine when I met higher rating %s.

Other members and VSOs say go straight to the BVA. However, I weighed the timeframes between supplemental, HLR, and BVA. I chose to take the route in that exact order. Give the supplemental team a chance to hopefully get it right. Most of the time they jacked it up, but I was surprised they did get it right a few times including granting one CUE. They usually took about three or four months to turn things around. The next stop was supplemental to let someone with more experience take a look. This process took about six to 12 months and in all but one or two cases, they corrected the errors made at the supplemental level. The only times I took something to the BVA was in 1995, 1997, and again early last year. In the late 1990s, it took about 12 to 18 months each time. With the covid factor today, my appeals have been sitting at the BVA for about 10 months without a docket number. I assume my video appointment will sit idle until 2023 or 2024. Unless there is a hardship factor, it's likely the BVA will take a very long time nowadays, especially with the legacy claims taking priority. However, if you have an issue which was remanded by the BVA, I would at least hope they would take your case for another look before taking mine. 

[pacmanx1]

1 hour ago, Vync said:

@pacmanx1I had something like that happen about 10 years ago. The VA sent a proposal to reduce and I promptly responded with evidence to justify continuing the rating %. Next letter I got was a decision reducing my rating % saying I never sent any evidence. I sent my return receipt card proving they received it, but they simply said I sent them something. I felt I was deemed guilty before proving my innocence. I got a paper copy of my c-file in the mail later and found it was stamped on the back with a date matching the receipt card. Took them about two months to fix it and another month for the retro to be applied.

In many cases, the person working claims now relies on search features to locate terms which might not always be typed correctly. However, I have a feeling many of your older records are handwritten, like mine, which are difficulty and nearly impossible to search unless done manually. They rely on the searches because they are under pressure to turn around claims as quickly as possible.

Yes, no but not really. In my particular case, yes there are handwritten documents. No but not really because the VARO do not even have to review my entire records because this remand goes all the way back to both a CAVC Decision (joint remand) and a BVA Decision (grant). The review of my records has already been done by the CAVC and the BVA. I referred the VARO to review these two decisions that clearly furnished them with enough evidence of symptoms, treatment dates, and diagnosis to correctly rate my rating percentage and correctly assign my effective date. No need to do a search for anything just review my prior CAVC and BVA decisions. I can’t figure out what the problem is or the hold up. Yes, this is both a continued pursuit remand and a remand based on 38 CFR 3.156b.

To truly get even more crazier, 38 CFR 3.156 and BERNARD V. BROWN 4 VET. App. 384, 390 (1993) states: “ONCE A CLAIM IS REOPENED, A CLAIMANT IS ENTITLED TO HAVE HIS/HER CLAIM RE-ADJUDICATED ON THE BASIS OF ALL THE EVIDENCE OF RECORD, BOTH OLD AND NEW”. There is really no need for my remand to still be pending. Even though I know the VARO knows this, it is part of their own procedure and should be included in their training for reopen claims. All evidence was accepted by the CAVC and the BVA now the VARO is saying that some part of the evidence is not good enough. If that was the case, why was my claim increased?  My BVA decision used the same evidence to warrant my 1998 effective date and the symptoms were exactly the same. My BVA decision states that my current symptoms are the same symptoms I was treated for while on active duty and found my lay statement credible, thus my direct service connection.

[Vync]

@pacmanx1Regarding getting your correct EEDs, have you considered writing your submission in crayon? I'm just kidding, but it's sad when they cannot perform an accurate verification.

It's been a while since I have seen anyone quote Bernard v. Brown. I filed a spine claim initially in 1995, but it was denied because the C&P doc stated my back was "normal". However, I compared the C&P ROM values with the rating criteria at the time and found I was objectively in the 10 or 20% range. I refiled in 2008 which was granted it in 2013 back to 2008, so that tells me that they never went back. Makes me wonder if I should do a CUE/supplemental and quote Bernard v. Brown to get an EED for that. Are you sure that Bernard v. Brown is still valid and has not been made moot?

[pacmanx1]

18 minutes ago, Vync said:

It's been a while since I have seen anyone quote Bernard v. Brown. I filed a spine claim initially in 1995, but it was denied because the C&P doc stated my back was "normal". However, I compared the C&P ROM values with the rating criteria at the time and found I was objectively in the 10 or 20% range. I refiled in 2008 which was granted it in 2013 back to 2008, so that tells me that they never went back. Makes me wonder if I should do a CUE/supplemental and quote Bernard v. Brown to get an EED for that. Are you sure that Bernard v. Brown is still valid and has not been made moot?

Bernard V Brown is in my CVAC Decision, and I think it is in my BVA Decision but have not look at it in a while but look at 38 CFR 3.156.

 New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record.

eCFR :: 38 CFR 3.156 -- New evidence.

My BVA grant also uses CLEMONS V SHINSEKI which is another beauty.

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

If a veteran files a claim and can prove symptoms and treatment, a veteran can claim an EED based on the symptoms and treatment of record and the claim he filed even though the veteran may have different diagnosis. 

The BVA determined that my records were full of different diagnosis, but these opinions were still for the exact same symptoms that I was given treatment for, and they granted my direct service-connection.