Nvlsp Common Va Errors For Increase

[broncovet]

Additionally, if you are seeking an earlier effective date, be sure that the VA did not make one of these effective date errors,

either:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

This is also published by the NVLSP

Additionally, if you are seeking an earlier effective date, be sure that the VA did not make one of these effective date errors,

either:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

This is also published by the NVLSP

[vaf]

I'd like to add another one. Making a rating increase effective based on the date of the most recent C & P exam, not the date the claim was filed, as a result of a Board or a Court remand. This is especially important when many years pass between the initial date of claim and whenever the VARO actually gets around to scheduling a C & P exam in response to the remand.

We've appealed the effective date of a grant of increase for a service-connected condition for which we filed an initial claim in 1993, received a 30% rating for the condition, then filed an NOD in 1994 when we received my husband's rating decision; at that time, we specifically argued that the evidence we provided met the criteria for a 50% rating. The claim was denied at the VARO, denied at the Board, went to the Court, the Court remanded, and then was bounced between the VARO/Appeals Management Center and the Board for years. The Board issued periodic follow-up remands to the VARO regarding the delay in scheduling a C & P. We finally filed a writ of mandamus petition in 2008, and got got the Board to ORDER the VARO to schedule the C & P, which finally came through in November 2011. My husband was awarded an increase from 30% to 50%, but it was only effective the date of the most recent C & P exam - November 2011.

We are appealing the effective date of claim, arguing that it should be the initial date of claim in 1993, since the claim has been open since then. The VARO's decision made a perfunctory statement saying there was no evidence for an earlier effective date, without presenting any evidence to back that up, nor did it even introduce the topic of staged ratings in the discussion.

[broncovet]

I agree with VAF. I mean, we need to get what is going on here:

The Vet applies for benefits, gets denied, finally approved and bases the effective date on the date of C and P exam, not the date of application based on 38 USC 5110

http://www.law.corne...de/text/38/5110

"Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."

They use the C and P exam as "facts found". This is BS, and suggests you predicted you would become disabled (on the date of the C and P exam), and then you "got disabled" in the C and P examiners office!!!

C and P exams dont cause Vets disabilities, they merely report them.

The C and P examiner SHOULD give evidence of an effective date, something like: "Based on the Veterans medical records it is at least as likely as not the Veteran suffered from this disorder as far back as 2002, when he was admitted to the hospital for treatment for it."

Instead, the C and P examiner gives no effective date, and the rating specialists "assumes" the effective date to be the date of the exam.

Edited March 24, 2012 by broncovet

[autumn]

I thought it was helpfull, too. One example, a quote from the NVLSP LINK:

Benefit of the Doubt Doctrine Applies to the Task of Divvying Up

Symptoms

z Multiple conditions, S/C and Non-S/C can impact similar

functions, or exhibit overlapping symptoms

– To rate the VA must try to separate out the symptoms

– Examiners unable to do so often state they cannot "without

resort to speculation"

z VA interprets as cutting against the claim. This is error.

z If it is not possible to separate effects of serviceconnected condition and non-service-connected

condition, VA must attribute all signs and symptoms to

service-connected condition.

fantastic helpful information. let me ask, should i send these two paragraphs you posted to my VSO to see he is aware of this? that is, i have a claim in for spinal injury and for secondary spinal/neuro disease. the VA could spend years trying to say what disease and/or injury is ticking of many of my neuro symptoms.

if i'm reading this correctly if the VA cannot totally distinguish which is which in these cases they *are supposed* to assign SC?

appreciate the education

[john999]

They pulled that stunt on my with my DMII claim. The VA refused to make a direct DMII DX until I had my C&P claim. I had high fasting glucose readings for years and yet they would not say "this vet has DMII". I got an EED on appeal and SC for PN on appeal. It really is beyond credulity that my DMII started on the day I was examined at the VA C&P team. I was examined by one doctor for the DMII and a neurologist for the PN. The doctors contradicted themselves on the PN so they went with the opinion of the non-neurologist who said I had PN in all four limbs.

John

[autumn]

They pulled that stunt on my with my DMII claim. The VA refused to make a direct DMII DX until I had my C&P claim. I had high fasting glucose readings for years and yet they would not say "this vet has DMII". I got an EED on appeal and SC for PN on appeal. It really is beyond credulity that my DMII started on the day I was examined at the VA C&P team. I was examined by one doctor for the DMII and a neurologist for the PN. The doctors contradicted themselves on the PN so they went with the opinion of the non-neurologist who said I had PN in all four limbs.

John

seems more norm than not RO going with the least qualified medical opinions. i know now why the VA neuros all these years were so vague and would never diagnose. and i thought tampa held promise. guess not. good luck with it john. those medical issues you mention can be quite troubling at times.