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.