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acesup

Complex EED Question: Reconsideration, NOD, or wait for BVA?

Question

I was rated 50% depression, 40% lumbar spine chronic sprain with Degenerative Disk Disease, 10 percent hepatitis A, for a total of 70%.  I have some other denied secondary SC issues from a 2007 & 2009 claim, on appeal since 2011, waiting certification to BVA.  One of those issues is bilateral sciatica/lower extremity radiculopathy secondary to my lumbar disability.

Although the C&P back in 2010 did show the sciatica condition, and both the VA Neuro ( at least as likely SC) and my private chiropractor  (more likely than not SC) did opine in my favor, it was denied, and I appealed.

Last year I had surgery on my lumbar spine, and filed for temporary 100%, which I recently got after reconsideration.  In the Decision Letter, I was told I would have a C&P to check level of disability.

I got that Decision Letter today.  The VA C&P examiner recorded my Range of Motion (thoracolumbar flexion) at 50 degrees, well over the 30 degrees range of a 40% rating, so my lumbar disability is now immediately reduced to 20%.  

However, the exam also showed mild sciatica in both legs, so I am now rated 10% each side, effective 05/23/2017, the date of the C&P exam.

I guess I'm okay with the reduced rating for my back.  And my overall rating is unchanged, it is still 70%, so I'm reasonably happy.

However, I believe the lower extremity radiculopathy ratings should have an Earlier Effective Date of 2007, and I think I will achieve that.

My question:  Do I ask now for a reconsideration, or file an NOD?  But figuring that either of those will probably just further delay my BVA appeal, would I be better served to just sit on the EED question until the BVA hearing?

Thanks in advance for your input!

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On 6/9/2017 at 3:07 PM, acesup said:

I got that Decision Letter today.  The VA C&P examiner recorded my Range of Motion (thoracolumbar flexion) at 50 degrees, well over the 30 degrees range of a 40% rating, so my lumbar disability is now immediately reduced to 20%.  

if i was you i would certainly Disagree with this range of motion testing and deduction. it was maybe the one good day you had out of a year... i would fight this reduction big time.

also regarding your nerves both sides id fight this with the fact that they probably didnt give you correct testing for this rating and its well more than the 10% both sides

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Unless the issue of the the effective date is specifically addressed at the BVA (that is, you included the issue of effective date on your I9) , it wont be discussed at your hearing.  Its a jurisdtictional issue...the BVA does not have jurisdiction Until or unless the VEteran specifically gives the BVA control, when he files a NOD, and perfects his appeal with the I9.  

Therefore, you will need to file a NOD disputing the effective date, and why.  Remember, the regulation states that your effective date will be the later of "facts found" (that is, the date the doc said you were disabled) or the date you applied.  

If the VA is saying the doc said you were not disabled until 2014, but you applied in 2008, then you must refute the docs opinion to win an eed.    It wont help you to submit paperwork confirming you applied in 2008..its the later of the facts found or date you applied.  

However, there are several exceptions to the effective date general rule:

1.  If you applied within a year of your exit from service. 

2.  If you submitted new and material evidence under 38 CFR 3.156.   

3.  If this is an increased rating, special rules apply.  

4.  If you are a Nehmer Vet, special rules apply.  

5.  If the VA did not send you notice of your rights to appeal, special rules apply.  

6.  If there is CUE.  

7.  Sometimes an informal or inferred claim can alter effective dates.  

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Based on what I posted, you need to timely file a NOD, on the applicable form.  I dont recommend a reconsideration UNLESS you have new and material evidence.  You probably wont even know if you have new evidence until you have ordered your cfile and read it.  

If you file a NOD, your "new" nod, is sometimes combined by the Board with your "old" issues before the board, and both can be adjuticated at once.  I really dont know when and why the BVA combines these issues into one appeal, when there are seperate NOD dates, but I do know they did that for me, more than once.  

I have just yesterday been notified that my BVA appeal is complete, but I dont yet know the outcome, or even if they combined two seperate NOD's

(one on TDIU and one on SMC S) or not.  

Edited by broncovet
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