ptsd They Denied My Nod For Retro Pay

[iraqx2]

Here is a quick summary of my situation-

When I was on 30% for PTSD for a couple years, the VA decided to call me in for an reevaluation on Dec, 2007.

A C&P was done and the a decision was made in January 2008, keeping my rating at 30% ( meaning a VA way of saying ooops, he is actually worse )

I filed an NOD in April 2008, stating that my C&P results/Dr.'s Statement was actually warranting a 70 % rating.

May 2008, they then decided to denied my request, but gave the option to file another NOD.

In November 2008 when I lost my job, I filed another NOD, which resulted in another C&P exam and also submitted new evidence from private doctor.

April 2009, a favorable decision was made giving me 70 for PTSD. I then filed another C&P stating the retro was calculated from November 2008 and should have been carried over from the original NOD from April, which was off the exam from Nov 2007.

The other day they sent a unique letter ( more like someone actually personally typed it ) stating that my NOD is invalid and my effective date was indeed when the new evidences were submitted in November. The letter also mentioned my claim for TDIU and if I wanted to drop the appeal. The tone was more like " we gave you what you wanted, now you want a bigger retro?".

They are saying that my symptoms have worsened, but only since November 2008.

I am saying ( including the results of the original C&P )that my symptoms have worsened since November 2007 and the lastest decision is a win based off the original C&P Exam in November of 2007. It should be a continuous of my original appeal. We are talking about $10k worth of retro.

What should I do now?

[Berta]

I dont understand why the VA stated the NOD was invslid.

What reason did they give?

[Philip Rogers]

Here is a quick summary of my situation-

When I was on 30% for PTSD for a couple years, the VA decided to call me in for an reevaluation on Dec, 2007.

A C&P was done and the a decision was made in January 2008, keeping my rating at 30% ( meaning a VA way of saying ooops, he is actually worse )

I filed an NOD in April 2008, stating that my C&P results/Dr.'s Statement was actually warranting a 70 % rating.

May 2008, they then decided to denied my request, but gave the option to file another NOD.

In November 2008 when I lost my job, I filed another NOD, which resulted in another C&P exam and also submitted new evidence from private doctor.

April 2009, a favorable decision was made giving me 70 for PTSD. I then filed another C&P(should this read NOD) stating the retro was calculated from November 2008 and should have been carried over from the original NOD from April, which was off the exam from Nov 2007.

The other day they sent a unique letter ( more like someone actually personally typed it ) stating that my NOD is invalid and my effective date was indeed when the new evidences were submitted in November. The letter also mentioned my claim for TDIU and if I wanted to drop the appeal. The tone was more like " we gave you what you wanted, now you want a bigger retro?".

They are saying that my symptoms have worsened, but only since November 2008.

I am saying ( including the results of the original C&P )that my symptoms have worsened since November 2007 and the lastest decision is a win based off the original C&P Exam in November of 2007. It should be a continuous of my original appeal. We are talking about $10k worth of retro.

What should I do now?

I would file another NOD, correcting info in previous NOD's, stating that they made a grave procedural error and that since your claim has been under continous prosecution and that the award date should actually go back to Nov 2007, the date of the C&P exam. Also state that your submission of addition evidence in Nov 2008 was just a submission of additional evidence and was not meant to establish an increase in disability date but was verification that your disability was actually worse than they rated it, previously, in Jan 2008. I think you need to correct some of your claim. You can't agrue for an EED, by arguing that you are worse now. You must argue you were worse than they rated you, then, in Jan 2008. I'd also request a DRO hearing.

With the 70% rating, they awarded, did they consider and deny TDIU and if so why??????

pr

[Berta]

"I filed an NOD in April 2008, stating that my C&P results/Dr.'s Statement was actually warranting a 70 % rating.

May 2008, they then decided to denied my request, but gave the option to file another NOD."

Philip raised a very interesting point you need to cosnider--grave procedural error-

yet -can you explain this above statement?

I never heard of VA giving a vet an option like that-did they give you a Statement of the Case?

Philip is correct- only if your disability was at higher level in Nov 2007, supported by medical evidence, is that the correct date for increase in Comp.

[iraqx2]

Philip/Berta,

Thanks for the responses.

What I meant by "option" was simply the paragraph on a typical Decision to a claim packet that states " IF YOU DISAGREE WITH THIS DECISION, YOUR RIGHTS TO APPEAL ", which I did in May 2008. That action should have kept my appeal and claim active.

In the SOC when I was finally awarded 70% mentioned how my symptoms did worsened, but there was also a separate paragraph stating when, in their view.... November 2008.

In the latest letter denying my NOD for retro pay, here is the exact words-

" There was no error in the assignment of the 70% disability evaluation for post traumatic stress disorder with major depressive disorder from November 26, 2008. This increased evaluation based on specific medical evidence in the claims folder which shows your condition became worse from November 26, 2008. Please reference page 4 of the Decision Review Officer Decision, particularly paragraphs 1, 2, and 3 which specify the provisions of the establishment of effective dates under 38 CFR 3.157."

Please note that November 26 date was the date from my IMO, which was followed by another VA C&P exam a week later in Dec.

For some reason, they may be thinking that I want retro going back to when I got out of active duty in 2004, NO, just December 2007. Another is that they simply believe my symptoms worsened in November. I really don't know. This is a lot of money I am disputing.

On the TDIU, it is active and they are working on it.

I am a simple person, the way I see it is that I made an argument in 2007, then denied, appeal, denied, appealed it, and won in November 2008. I should be paid accordingly.

[jbasser]

It does not have a thing to so with the NOD. It is all about the Blatent misinterpetation of the regs.

3.400. The date the condition arose or the date claim filed whichever is later.

Put that on a NOD and say this: The condition arose in November of 2007. (Bottom Line)

Please award the correct effective date on the claim using this criteria, (Reg)

J

[Philip Rogers]

iraqx2 - I agree you should get the retro, if the 11/07 exam showed you were worse and that you should not give up! $10k is big bucks to most vets. Could you clarify a few things? You originally stated the VA called you in for a re-evaluation in 12/07 and also state that the C&P exam was done in 11/07. This is somewhat confusing as I've never heard of them doing an exam before they decide to re-evaluate someone. You also stated that "you filed another C&P stating that the retro"- did you mean NOD?

In the 70% award what did they say about TDIU?? They were required to state something about TDIU. You stated "On the TDIU, it is active and they are working on it" but I need to know exactly what they said about it. Any way you can black out the personal info and post your award letters?? We only need the critical stuff, such as Introduction, Decision, Evidence and Reasons. It sure would help to see all the decisions.

pr

Philip/Berta,

Thanks for the responses.

What I meant by "option" was simply the paragraph on a typical Decision to a claim packet that states " IF YOU DISAGREE WITH THIS DECISION, YOUR RIGHTS TO APPEAL ", which I did in May 2008. That action should have kept my appeal and claim active.

In the SOC when I was finally awarded 70% mentioned how my symptoms did worsened, but there was also a separate paragraph stating when, in their view.... November 2008.

In the latest letter denying my NOD for retro pay, here is the exact words-

" There was no error in the assignment of the 70% disability evaluation for post traumatic stress disorder with major depressive disorder from November 26, 2008. This increased evaluation based on specific medical evidence in the claims folder which shows your condition became worse from November 26, 2008. Please reference page 4 of the Decision Review Officer Decision, particularly paragraphs 1, 2, and 3 which specify the provisions of the establishment of effective dates under 38 CFR 3.157."

Please note that November 26 date was the date from my IMO, which was followed by another VA C&P exam a week later in Dec.

For some reason, they may be thinking that I want retro going back to when I got out of active duty in 2004, NO, just December 2007. Another is that they simply believe my symptoms worsened in November. I really don't know. This is a lot of money I am disputing.

On the TDIU, it is active and they are working on it.

I am a simple person, the way I see it is that I made an argument in 2007, then denied, appeal, denied, appealed it, and won in November 2008. I should be paid accordingly.