hypertension Question About A Recent Decision

[CAVMSG]

Hello All,

I will attempt to keep this short and to the point.

I filed a claim Oct 07.

Decision dtd 17 Jan 08 Rated 90% for:

Sleep Apnea:50%

PTSD: 30%

BPH 20%

R shoulder: 20%

L shoulder: 10%

C spine: 10%

L spine:10%

L knee: 10%

Tinnitus: 10%

Bl Hearing loss: 0%

hypertension: 0%

residual bunionectomy: 0%

degenerative changes R ankle: 0%

Spent the next 8 months getting IMO's to refute incorrect C&P/ decisions on: C-Spine, PTSD, residual bunionectomy, degenerative changes R ankle, L knee. Submitted a Request for Reconsideration that was received at BVA 27 Oct 08, this was within one year of my Retirement. I was sent for new C&P for all conditions under the request for review. Claim was adjuticated 6 Mar 09:

Decision dated 6 Mar 09 100%

Sleep Apnea: 50%

PTSD: 50%

BPH: 20%

C Spine: 20%

L shoulder: 10%

L spine: 10%

R Shoulder: 20%

Deg change R ankle: 10%

L knee: 10%

Tinnitus: 10%

residual bunionectomy: 10%

BL Hearing loss: 0%

hypertension: 0%

Getting to my question; I received back pay from VA from Nov 08 through Mar09 for the difference between 90% and 100%, there was a note under "What we decided" "We determined that the following service conditions have worsened, so we granted an increase in your assigned percentages" I question this because in my very detailed Request for a review I explaned very well my case, and submitted the IMO documentation that specifically targeted the areas I was refuting, the second set of C&P's obviously upheld those IMO, hence the increases.

Should not the increase been back to the date of my original claim as I requested the review within 1 year of retirement?

Another note that through me slightly was: "We have assigned an effective date of October, which is the date received your claim. Although you filed your claim within one year of discharge from service, the evidence of the record does not indicate your were entitled to an increased evaluation until this date."

I saw a statement in the CFR that spoke about this, is this VBA's out to paying to an earlier effective date? How do you fight this? It seems to me that this is a grey and since I did not get all of my IMO's within a few months of retirement VBA is saying the conditions had gotten worse and not that they were wrong in applying the correct rating in the initial award.

I have already drafted a DRO request, however have not sent it. I do not want to waste my time if the VA law is not on my side, however, I also do not want to go the rest of my life knowing that I know I was right and out over 20,000.

Looking for a little help from the experts on the forum, for the best course of action, DRO review, straight appeal, or do nothing b/c it's a lost cause.

I thank you in advance for your assistance.

CAVMSG

[Pete53]

The VA does this a lot and they did it to me. I think that you have a valid reason to appeal the back pay issue.

Good Luck

[mags1023]

I agree with Pete53, you definitely have a valid appeal. I believe the VA does this sort of thing hoping you'll just accept it since you got to 100%. They figure if 50% of the people don't NOD then they are ahead of the game. The most important thing in your case will be proving that you had these conditions at the present level within one year of getting out. Hopefully, you have some MRI's or xrays for the body parts that are rated. Your PTSD going from 30-50% is the major rating that got you to the 100% level. What does your inititial report indicate? Has GAF gotten progressively worse and did it happen within a year??? Hopefully, you will not have to go all the way to BVA on this. If you have the evidence, highlight the areas that showed worsening over the 1st year. You should prevail!

[Berta]

"Getting to my question; I received back pay from VA from Nov 08 through Mar09 for the difference between 90% and 100%,"

What was the Entitlement date they used for the 90% award?

such as for the PTSD when it was 30%

It seems to me that this is a grey and since I did not get all of my IMO's within a few months of retirement VBA is saying the conditions had gotten worse and not that they were wrong in applying the correct rating in the initial award."

Do you have any access at all to someone with the VBM by NVLSP?

They devpte considerable info there on EEDS.

But having said that- this seems to me to be an obvious error-

But unusual-

Question-are they saying (I will focus on the PTSD)

you were 30% but then -only until they received IMO -you were then 50%?

That is like when the VA will award SC for diabetes and then use the date of the C & P as the EED for diabetes- they do this and get often away with it.

The VBM is firm:

(I am not allowed to copy or post whole pages of it here:

"If a claim for service connected disability compensation is received within one year from the date of discharge from military service ,the effective date will be the day after discharge, assuming the veteran had the claimed disability on the day after discharge from service."

Then they cite: 38 IUSC 5110((1), 38 CFR 3.400((2)(i)

Did your PTSD IMO cover the fact that the PTSD increased in affect earlier than the date they assigned the 50%?

"Another note that through me slightly was: "We have assigned an effective date of October, which is the date received your claim. Although you filed your claim within one year of discharge from service, the evidence of the record does not indicate your were entitled to an increased evaluation until this date."

Odd statement-

Do yoi still have (I hope) the award for PTSD and why they said they did not award higher level for PTSD at that time?

And for any other condition?

[Berta]

I forgot to ask-

You are 100% -have you applied for SSA yet?

[CAVMSG]

This is why I love this site. I asked a for help and got straight forward answers.

Mags1023,

GAF stayed about the same. I am glad you pointed this out, it will be useful in an appeal.

Berta,

Entitlement date for initial award was 1st day of retirement. Date for all Reviewed conditions changed to date I filed the request for a review.

I still have every document I sent or received from VA, a little something I picked up here (just one of many things).

I read the CFR and I just could not get it straight in my head exactly what they meant, I may be trying to read something into it that is not there however.

Thank you to All, you have helped me in making my decision to appeal the decision. I now have some angles in which to show the VBA where they errored.

CAVMSG

[CAVMSG]

Berta,

No SSA. I am trying to keep my stress level down, and not sure if I can handle wrestling two orginizations at once. It is on my mind, just havent crossed that bridge.

CAVMSG