Supplemental Claim Effective Dates

Arrival of the U.S. 1st Cavalry Division (Air Mobile) in Vietnam

Recently, a Veteran reached out to me for help with an appeal. He had put in an initial claim for combat-related PTSD but the VA C&P examiner had rushed through the exam, failing to give the Veteran time to explain his symptoms and the impact of his symptoms on his daily life. As a result, the Veteran was low-balled with a 50% rating.

I started by helping him obtain an independent medical opinion (IMO) from a psychologist that properly documented his symptoms. You’ve got to be really careful who you use for these opinions, as there are a fair amount of nexus letter/IMO/DBQ providers out there who are persona non grata with the VA because they’ve submitted far too many shoddy opinions. Their medical opinions carry no weight and can actually work against you. A lot of Veterans pay a hefty fee to get a letter from one of those providers and it pretty much guarantees their claim will be denied.

4th Infantry Division soldiers moving across open field - Quang Ngai 1967

Even before submitting the Supplemental Claim I was expecting that if the VA did indeed grant a higher rating, they would play games with the effective date and state in their decision that the effective date should be the date the medical evidence showed entitlement to a higher rating (the date of our IMO) and not the original date of claim.

With that in mind, I had the Veteran document how the initial PTSD exam had been inadequate – that the examiner rushed through the exam and didn’t really ask him about his symptoms and their impact. His spouse also provided a well-written statement documenting years of severe symptoms that pre-dated the initial C&P exam. I submitted that documentation along with the Supplemental Claim, which was submitted within a year from the original 50% grant for PTSD, maintaining the Veteran’s continuous pursuit of his claim.

101st Airborne medic dresses wound - Operation Cook 1967

The VA did grant 100% for his PTSD but they did exactly as expected and made the effective date of the 100% award the date of the IMO report we submitted instead of the original date of claim.

This shafted the Veteran out of upwards of $40k in back pay.

In their decision, the VA relied on the 38 CFR 3.400(o)(2) on increases for disability compensation which states:

“Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established.” (emphasis added)

4th Infantry Division helicopter assault from UH-1 in 1967

So the VA performs a shoddy exam, the Veteran properly and continually pursues the claim by filing an appeal with evidence that the original exam was inadequate, but the VA still points to that regulation as a basis for denying the original effective date and ignores the evidence of record that shows that his symptoms have been severe since the initial claim and that the first C&P wasn’t accurate. It’s maddening.

This got me pretty fired up, so I immediately put together a brief to the Board of Veterans Appeals and filed a Notice of Disagreement (NOD) for Direct Review with a judge at the BVA. With some stuff you just need to get in front of a Veterans Law Judge (VLJ) instead of wasting time at the Agency of Original Jurisdiction (AOJ).

The Direct Review docket is faster than going through the Evidence Submission docket at the BVA, which was one of the major reasons why I ensured we had all the evidence we needed already included with the Supplemental Claim. No need to add any new evidence, just shoot straight to a VLJ via Direct Review with the evidence of record.

173rd Airborne soldiers waiting for airlift - Operation Toledo in 1966

In addition to citing a lot of case law, I pointed to 38 CFR 3.2500(h)(1) as the basis of my argument, which states:

“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.”

199th Light Infantry Brigade - Operation Rang Dong 1967

An excerpt of my argument from that brief:

“The Secretary has not made a compelling argument as to why certain pieces of evidence should be ignored, and why 38 CFR 3.400 should rule the day over 38 CFR 3.2500(h)(1). The Veteran has continuously pursued this claim under the AMA, giving clear indication that he did not agree with the initial 50 percent award that was granted. He has provided statements on the inadequacy of the first exam and the timing and severity of his PTSD symptoms. His wife has also provided a thorough statement documenting severe PTSD symptoms dating back several years.

Incredibly, it appears the Secretary would have you believe that all of the severe symptoms warranting a total rating that were reported by both the Veteran and his wife did not begin until after the initial 50 percent award for PTSD. That the initial examination was without reproach, and that the Veteran’s symptoms simply fell off a proverbial cliff between that date and the date of his independent medical examination.

This position does not align with the totality of the evidence submitted. The Veteran should not be deprived of the correct effective date simply due to an inadequate exam that did not properly document his symptoms. Having continuously pursued this claim under the AMA, he should be awarded the best and highest rating for the entire period on appeal.”

This case is still pending before the BVA so I will not know the result for some time, but I wanted to share one way you can argue against these effective date games if you’ve ended up in a similar situation. Knowing what the VA is likely going to do in a particular situation and laying the groundwork to fight it ahead of time can be the difference between an eventual grant or a denial.