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]

As of 2021 the BVA is still using BERNARD V BROWN. Here are a few decisions.

Entitlement to service connection for a nightmare disorder is granted.

Decision Date: 10/12/21 Archive Date: 10/12/21 

The Veteran's claim was remanded by the Board in a May 2020 decision.  The Board directed the RO to obtain VA treatment and private treatment records, schedule the Veteran for a VA examination, and then re-adjudicate the appeal.  The Board finds that the RO did not substantially comply with the March 2020 remand as the RO failed to re-adjudicate the case and issue a supplemental statement of the case after receiving new and pertinent evidence, including VA treatment records and a VA examination.  See 38 C.F.R. § 19.31; see also Stegall v. West, 11 Vet. App. 268 (1998).  Nevertheless, the Board finds that a remand is unnecessary and may proceed with the adjudication of the claims herein without any prejudice to the Veteran given the favorable findings below.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

https://www.va.gov/vetapp21/Files10/21062958.txt 

After the hearing, the record was held open for an additional 90 days, so until July 7, 2021, to allow the Veteran time to obtain and submit additional supporting evidence and/or argument, which he later did within the time specified. However, at the end of the 90 days, he also requested another 60 days to submit still more evidence supporting his claim. No additional evidence is needed, however, since, in this decision, the Board is granting an even higher 50 percent rating for his headaches which is the maximum permissible schedular rating for this disability. Thus, he is not prejudiced by the Board going ahead and preemptively doing this. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). He also clarified during his hearing that he is not claiming derivative entitlement to a total disability rating based on individual unemployability (TDIU), so the Board need not address this additional issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

A higher 50 percent rating is granted for the migraines for the entirety of the review period so effectively since June 5, 2014 

https://www.va.gov/vetapp21/Files7/21046750.txt  

Re-adjudication of the claim for service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma is granted. 

Initially, as discussed above, this appeal warrants re-adjudication on the merits based on VA's receipt of new and relevant evidence since the final July 2016 rating decision. Because the AOJ did not find that new and relevant evidence was received, the AOJ has not yet adjudicated the claim on the merits. Generally, where the Board finds re-adjudication of a claim is warranted, but the AOJ did not, the case must be remanded for AOJ adjudication with consideration of the merits of the claim in the first instance unless there is a waiver from the appellant, or no prejudice would result from the re-adjudication of the claim. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).

https://www.va.gov/vetapp21/Files6/A21010498.txt

Edited February 4, 2022 by pacmanx1

[SPO]

So I'm taking my chances and going HLR with this statement.

In the 11/30/2021 ratings decision I was assigned a 0% rating from 11/16/2018 to 07/07/2020 for all the items listed on on the
VA form 20-0996 (dated 2/09/2022). The effective date of 07/07/2020 for the all of these evaluations should be adjusted
11/16/2018. This is based on the previous application of CFR § 3.25(h)(1) in my supplemental claim decision, dated
07/31/2020. In this decision (07/31/2020) the effective date for the 2 items that were granted (Psoriatic arthritis of the back at
20%, and Psoriatic arthritis of the hip at 10%) were assigned an effective date at those percentages from 11/16/2018. It is
noted in the 07/31/2020 decision that this date is awarded because the claim has be continuously pursued in accordance
with CFR § 3.25(h)(1). This claim still falls under this regulation because I filed an appeal within 1 year of this decision.
The ratings decision dated 11/30/2021 used the same C&P exam, dated 07/07/2020, information as the supplemental claim
(07/31/2020) to justify the ratings percentages assigned, but assigned different effective dates. In addition, a 0% rating from
11/16/2018 to 07/07/2020 cannot be justified if it is based on the results the initial C&P, dated 04/19/2019, because it was
inadequate. The reasoning for this is explained in a statement I filed as part of the supplemental claim. Since the initial
exam was inadequate, the VA did not meet its duty to assist in providing a thorough and complete medical exam to evaluate
the severity of my conditions until 07/07/2020. Therefore any previous C&P exam should not be used to attempt to justify a
lower rating percentage or effective date.
In all the VA inequitably and inconsistently applied the regulations concerning assignment of effective dates and this
negatively impacted my overall rating, financial situation, and effective date of my permanent and total designation, thus
affecting availability of other benefits I should have had access to.

[Vync]

@pacmanx1It's been a while since I read Bernard v. Brown. Reminds me of when I originally filed. The VSO typed up a vague one sentence statement on the form saying I was requesting SC for problems with neck, back, etc... without being too specific.

 

[pacmanx1]

31 minutes ago, Vync said:

The VSO typed up a vague one sentence statement on the form saying I was requesting SC for problems with neck, back, etc... without being too specific.

On page three of this thread, I mention CLEMENS V. SHINSEKI. 

Veterans are not medically trained, and the VA is supposed to service connect symptoms not diagnosis. Yes, veterans still need diagnosis, but the veteran can still win their benefits based on symptoms. That was the point of CLEMONS V SHINSEKI. 

[pacmanx1]

5 hours ago, Vync said:

@pacmanx1It's been a while since I read Bernard v. Brown. Reminds me of when I originally filed.

Based on my most recent remand, it states: "With consideration of all the evidence of record, re-adjudicate the claims for entitlement to an initial rating in excess of 00 percent for "disability name" prior to Month DD, Year, and to restoration of a 00 percent rating for "disability name" as of Month DD, Year.  If the benefits sought on appeal remain denied, the Veteran should be provided an SSOC.  An appropriate period should be allowed for response before the case is returned to the Board, if otherwise in order".

Well, the RO restored my rating but never address my initial rating percentage. 

[SPO]

So I rolled the dice and went with and HLR.  10 days after submitting, I show retro payment in my payment history and the correct effective date on my benefit summary letter.   This brings me to a close with my VA claims.  100% P&T with the correct effective date.  Thanks to everyone on here!  Your advice and personal experiences have been invaluable.  I hope someone else can take these experience and posts to reach their VA goal as well.  THANK YOU ALL!