Retro Date Issue

[mountain tyme]

Hello

I have a question regarding retro date of a claim based on a reconsideration of a rating decision. If the reconsideration was filed within one month of the VA decision and the reconsideration was for a higher percentage and the VA outcome was favorable for a higher % would the VA go back to the original claim date or would they only go back to the date the reconsideration was filed for retro pay?

Thank You in advance

mountain tyme

[Ricky]

I assume that you are speaking of a decision by the RO. The answer to your question would be that any change made by them would be effective the date of the claim.

Please keep in mind that you have 12 months from the date of the decision letter to file an appeal. Eventhough you have asked them to reconsider their decision the appeals clock continues to tick. So if you have not heard anything on a requested reconsideration at about the 10 months time frame you better get your NOD in or you risk the possibility that you could lose your appeal rights which would mean that you would have to refile the claim and provide new and material evidence along with losing your original effective date.

[Berta]

Ricky is correct-I have mentioned this here before too- a Reconsideration request does NOT stop the NOD clock.

I had until June 30,2007 to file a NOD on an SMC CUE claim I had.

The VARO has been working on the reconsideration request I filed almost a year ago-and I have sent additional Legal evidence (not medical because it is a CUE)

The single point they seemed to be denying on also was clarified in my submission after their last letter.

Although the VARO actively has been working on the reconsideration request I filed about a week after their last denial- I also knew that it would be beneficial for the RO for me to allow my NOD time to run out.

I didnt let that happen and also I made sure I was within one day of filing the NOD after the new attorney for vet regs came out.

You will be within that criteria too-

The attorney for vets Bill of Choice involves only those claims with NODs filed after June 21, 2007-the date of the new regs.

Everyone else, the thousands of men and women who have been in the claims system for years so far-have been denied this right within the new Bill of Choice.

I saw a case at the BVA where the vet had filed a reconsideration request but no NOD.

His vet rep was really on the ball because the rep, on a 21-4138, sent the VA a statement in support of the claim and added this is a 'formal Notice of Disagreement' if the Reconsideration request does not produce a grant of benefits.

The RO denied and said the claimant had not sent a NOD in on time.

The BVA, with the 21-4138- overruled the RO and remanded the claim as it was still in active appeals state at the regional level as the rep had filed the NOD statement in time.

[mountain tyme]

Thank You Berta and Rickey...

I received my rating for SC in Jan. 07 and did not file for a reconsideration until March 07 (that is when I received a copy of my C/P) due to errors on my C/P. I requested a recosideration for an increase...after my doctor reviewed the C/P and the VA criteria on how they rate my disability she stronly felt I rated higher and wrote a statement of fact in support as to why I medically met the criteria set forth by the VA...When I called the VARO office on Friday I was told that a decision was made and I should hear something within 30 days..and I was also told that if I received a favorable outcome and was rated higher that the retro pay would not go back to the date of the original claim of 05 but by the date of the reconsideration which would be march of 07 because the decision would be based on new and material evidence (doctor statement) that was not present during the inital determination.

I do not know what the determination will be...but after talking to my husband about the time line he suggested if I do not hear anything from the VA by the End of September that I should file a NOD...which after reading both your replies to my question is the best way to go.

I have been working on my NOD for a few months...trying to get all my ducks in a row...not sure if I am doing it right but I have been winging this by myself and reading everything I can on this site to get more insight on how to work my claim...

I haven't thought about obtaining a lawyer...I not sure if there are any good one's around...that know any more about the VA system as I do...most at this point are probably green horns when it comes to the VA system...and If my claim is going to be messed up I perfer to be the one messing it up...I am the only one that has a stake in my claim and trust is not something I have too much of when it comes to others...

Thank You again

mountain tyme

[JohnM]

Ricky and Berta:

Thank you for your answers to this question, when we filed for all of my brothers illness's we asked them to reconsider the DMII and Hypertension. Not realizing about the NOD. I had called Milwaukee and they never said anything about filing NOD just that we should ask them to reconsider it. I just faxed this post over to my sister-in-law. For some reason she can not get on to habit, so she can no longer read the post. If you can tell us how she can fix this problem, it would be nice. I am talking about Emmak.

Thanks JohnM's Wife Dianne

[Pete53]

Have emmack email webmaster@hadit.com She can always go on as a guest till she gets it fixed.

[Berta]

"When I called the VARO office on Friday I was told that a decision was made and I should hear something within 30 days..and I was also told that if I received a favorable outcome and was rated higher that the retro pay would not go back to the date of the original claim of 05 but by the date of the reconsideration which would be march of 07 because the decision would be based on new and material evidence (doctor statement) that was not present during the inital determination. "

That is a lot of info to get out of an 800# vet rep at the VARO-

If VA did have sufficient medical evidence of higher rating-then I feel the retro should go back to the filing date-if the rating should hacve been higher when the claim was filed.

The 800# rep could be right- then again they could be wrong-

it all depends on what I call the Watergate question-

WHat did the VA know and when did they know it-

If VA could have awarded higher rating due to evidence they had-which you have a doctor's opinion on-I feel the retro should be when the VA had this evidence that supported the higher rating.

I hope you hear something soon-

"after my doctor reviewed the C/P and the VA criteria on how they rate my disability she stronly felt I rated higher and wrote a statement of fact in support as to why I medically met the criteria set forth by the VA"

In my opinion she supported medical evidence VA already had- thus- the EED shoud be the date of the claim-

that is only my opinion and best to see what VA does and what rationale they would use as I dont see this as "new and material" as to the date of disability-

The VA usually never gives a retro date as the same date as receipt of an IMO.

The retro is based on when the clinical record showed the disability/and/or an increase in its affect to the veteran.

The 800# person might have been talking out of their

hat