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Complex EED Question: Reconsideration, NOD, or wait for BVA?
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acesup
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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broncovet 2 posts
acesup 1 post
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broncovet
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 jurisdtict
broncovet
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 n
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