This one is new and a little odd. But in some situations, the VA might apply your intent to file to the wrong claim causing you to lose the effective date you were trying to preserve with the intent to file in the first place. This can happen if you have two or more disabilities at different stages of the claim or appeal process and file a supplemental claim for one of them, it might take an intent to file off the table when you didn’t want it to. We call different claims at different stages claim streams by the way.
A little background might help. So, originally, the VA regulations said that an intent to file could not be used on a supplemental claim at all. Last summer, 2021 for whenever you might be reading this, the United States Court of Appeals for the Federal Circuit tossed that part of the VA regs so now you can use an intent to file with a supplemental claim.
That was a great decision, it was the right decision, I’m glad the court fixed it. But as is often the case, the solution to a problem can also generate different problems. In this case, it does.
I think an example will help. Let’s say you just received a decision that put you at 50% for PTSD and you also have sleep apnea which you believe is secondary to your PTSD but you’ve never filed a claim for it and you aren’t ready to because you want to line up more evidence. But you go ahead and file an intent to file to preserve your effective date for the sleep apnea claim.
Next, let’s say you file a supplemental claim on your PTSD a month after your intent to file and within one year of the last PTSD decision. Then several months later when you receive the decision on the supplemental claim you realize the VA linked that intent to file to the PTSD supplemental claim and now that intent to file you put in for your sleep apnea claim is off the table.
Now because the supplemental claim was within one year of the last decision, I think that’s an error because the VA is obligated to give you the earliest effective date it can under the law which would be much earlier than the intent to file. But that doesn’t mean they won’t try to take the intent to file off the table anyway. But what if you filed that PTSD supplemental claim more than a year after the last PTSD decision. In that case, which claim should the intent to file relate to. Keep in mind that the VA doesn’t know you’re planning on filing a sleep apnea claim because the intent to file form doesn’t require or even offer a way for you to state which disability you want it to apply to. And that’s not a bad thing.
The VA has to follow its regulations which currently only allow one active intent to file form at any given time. And the VA’s intern interim guidance following the court case I mentioned earlier says, I’m paraphrasing, if you file a supplemental claim within one year of an intent to file, the VA will associate that supplemental claim with that intent to file.
On the more practical side, I don’t yet know how to prevent this problem. The law in this area is unsettled and I would be skeptical of anyone who’s telling you they have a guaranteed way to fix this. I will tell you what I’m doing with the veterans I’m working with. If there is an active intent to file, and we file a supplemental claim for something different than what the intent to file is for, I will specifically say in the argument that the veteran does not intend that the intent to file apply to this supplemental claim. I will also immediately file a new intent to file right after the supplemental claim just in case that argument is found to be invalid. I’m also trying harder to keep claims grouped together, if there are fewer claim streams then there is less of a chance of this problem popping up.
That is a defensive strategy to preserve effective dates. I don’t know if those arguments will work. And I won’t know, probably until I or some other veterans advocate takes a case like this to the Court of Appeals for Veterans Claim. And that can take a few years. So we are going to be dealing with this situation for a while. The VA could also update the relevant regulations. I’ll keep watching for that too.
VA disability law can be tricky, no single strategy is going to work for every claim. If you’d like me to help you with your VA disability claim you can reach out to me through the links on this page.