Supplemental Claims

Don’t Accidentally Lose Your Intent To File Effective Date

Supplemental Claims /
This page is a slightly edited transcription of this video.

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.

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What if your Supplemental Claim doesn’t have New and Relevant Evidence

Disability Claims, Supplemental Claims /

You know that if you file a supplemental claim, you have to include new and relevant evidence. So, what if you don’t, what happens then.

The first thing that happens is the VA will consider your supplemental claim incomplete. That kicks you over into a different set of rules about what happens with incomplete supplemental claims. And the short answer is that the VA will send you a letter that says you have 60 days to do give them some new and relevant evidence.

If you do not send them new evidence or identify new evidence within that 60 days the VA will send you a letter saying basically that they can’t even consider the supplemental claim. You may think that is a decision that denies the supplemental but it’s not. You won’t even get a decision. Legally speaking, it will be as if the supplemental claim never happened.

If you do send them new evidence or identify new evidence, within that 60 days, now you have a complete supplemental claim and the VA gives you the filing date of the incomplete supplemental claim. The VA will treat it as though you filed a complete supplemental claim the first time.

Depending on your circumstances, how you do this can save or lose your effective date. Here’s an example, let’s say you get a decision denying your claim, and you wait one day short of a full year to file a supplemental claim. And let’s say your supplemental claim didn’t have any new and relevant evidence. The VA sends you the letter giving you another 60 days and you still don’t send new evidence. If that happens, that denial, just became final and if you eventually do become service-connected for whatever the claim was, you won’t be able to get an effective date back to your original claim.

But, using that same example, if you do submit new and relevant evidence within that 60 days, then you were able to buy yourself a little extra time because you had the full year after the decision, plus the time it took the VA to process the supplemental claim form and send you that letter giving you 60 days, plus an extra 60 days.

An extra 60 days might be all you need. Maybe you received that decision denying your claim, it made you mad, so you threw it wherever you throw bad VA decisions or bills, or anything you know you shouldn’t throw away but you don’t want to deal with. And then it gets buried and you don’t think about it for a long time until it’s too late, or almost too late.

Anyway, I hope you found this helpful. 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.

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VA’s all too common supplemental claim effective date error.

Disability Claims, Supplemental Claims /

I want to talk about one fairly common mistake the VA makes. This particular mistake usually plays out in the following way. A Veteran files a claim gets denied and files a supplemental claim within one year. That supplemental claim has a new medical opinion and the VA grants the Veterans claim. But, and here’s the mistake, the VA sets the effective date as the date of the medical opinion, or the date of the supplemental claim, not the date the initial claim was filed.

I think the VA is pretty much always wrong when they do this. Now I’ll never know what’s going through a particular rater’s head when they make a decision, but I think the mistake falls mostly into two categories. The first is that the rater wasn’t paying close enough attention for whatever reason. The second is that the rater misapplied one of the VA’s effective date rules and the VA is basically saying the date your entitlement arose was the date of the new medical opinion.

When this happens, the first thing you should do is slowly and carefully read the decision. More than once. Look for any reason the VA gave you for that effective date. They may not give a reason, so there might be nothing in there. But if they did give a reason, you need to know about it so you can deal with it.

Second, you are usually going to be able to fix this with a higher-level review. Make sure you file that within one year of the decision. Submit a written letter with your higher-level review form. That letter will contain your argument which explains why the VA was wrong. You should just have to explain that your claim was continuously pursued. What that means is you never let a year pass after a decision before you filed an appeal of some kind.

Higher-level reviewers from what I’ve seen, usually get this right and correct the error. But if they don’t, you can appeal to the Board of Veterans Appeals.

Ok so what if you’ve waited more than a year to deal with this mistake from the VA. Unfortunately, in that case, your only real option to fix that effective date is to file a CUE claim. CUE, if you don’t know, stands for clear and unmistakable error. Unlike most other things in the VA universe, a CUE claim is a one-shot deal and if you mess it up, that’s it. So, you should take CUE claims very seriously. I don’t want really want to get into CUE right now so I’ll stop there. But please do talk to someone before you ask the VA to review a decision based on CUE. Several someones would be even better.

I hope that was helpful. And as usual, if you want me to help you with your claim, you can reach out to me through the links on this page.

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