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Earlier Effective Date

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Charleese

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Hi all,

My husband spoke with his DAV representative on yesterday concerning an Earlier Effective Date for his injury that occurred in July 2008 when he had a fall which resulted in a spinal cord injury. He was operated on August 16, 2008 and stayed in hospital for 40 days. In October 2008 he had occupational and physical therapy up until April 30 2009. He filed for IU and spinal cord injury in May of 2009. BVA granted him IU and for his spinal cord injury for claimed filed in May 2009 instead of July 2008. He could not file any earlier because he had to wait until all his occupational and physical therapy was over with so he would know what to file for.

Yesterday his DAV told him to appeal RO decision by having a video conference with BVA because he said that would be the earliest of all the other appeals.

My question is (1) do you think they will grant him an earlier effective date of July 2008; (2) have anyone had a video conference with BVA and if so what are some of the questions that they ask; (3) is video conferencing the earliest for appeals.

Thanks in advance for your replies!

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Charlese,

I agree with Broncovet that unless your claim falls under one of the

exceptions, they will only pay from the date filed, even though it is a

secondary injury. He could file an appeal with BVA, giving the reasons you explained

in your post, and flip a coin. The worst that can happen is he will be

denied an EED of 2008 again. Am a little confused with ref to BVA and RO.

If a VARO issue,file NOD, giving same reasons. I doubt the RO will go against

a BVA decision. This is if I have it figured right. JMHO

Someone will correct me if I am wrong.

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Hi all,

My husband did report his cervical spine injury to VA in 2008. In November 2008 he gave copies of hospital reports to his VA PCP who entered the information into VA computer system. When husband had his November 13, 2008 C&P exam it states the following:

"Most recently on July 30, 2008 the veteran and his wife stated that he fell on his right side on his neck, requiring subsequent surgery of an anterior cervical discectomy a C3-C4 and interbody fusion 0f C3-C4 with Bengal cages as a result of a massive cervical disc herniation. The veteran stated that his left knee gave and he lost his balance on the pavement . He now uses a walker for ambulation and has difficulty with gait, although his strength has markedly improved since the surgery". Physical exam states: "Noted - walking with a walker and also holding a cane for better weight balance. Asssessment states in part: "He has had a recent fall that is at least as likely as not the result of the weakness and locking of the left knee. This fall was significant, as it resulted in a heriniated disc requiring fusion and discectomy as stated above".

Because VA knew about his injury in 2008 is the reason why my husband filed claim in 2009. We thought this information constituted a claim which would of given him the earlier effective date of July 30, 2008. However RO dnied it and he did a NOD which RO denied and now we have to appeal to BVA using this info.

We hope this will work. What do you all think?

Thanks in advance for all replys.

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My question is

(1) do you think they will grant him an earlier effective date of July 2008;

(2) have anyone had a video conference with BVA and if so what are some of the questions that they ask;

(3) is video conferencing the earliest for appeals.

Thanks in advance for your replies!

1) This is purely a issue of law and effective date regs.

Without having access to the entire claims file there is no way to provide an accurate answer.

My guess is that the effective date adjudicated will be the day the claim was filed -

with perhaps, up to 12 months prior to the date the claim was filed, per medical evidence of record.

2) YES - I do not feel they will ask many questions as this issue only concerns the laws / regs, applicable

to effective dates, when the claim was filed and the medical evidence of record.

3) NO - a video conference hearing with a BVA - ALJ is NOT the earliest / quickest way to get a hearing

scheduled. IMO the quickest way to get a hearing scheduled is to notify BVA you are willing to travel to

Washington, DC for a hearing and you are willing and able to pay your own expenses associated with

the hearing.

JMHO

Editing to add:

What is the current level of SC ?

Does he get any SMC's ?

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He was already SC 30%disabling for status post fracture left tibia tubercle with osteoarthritic changes and chronic chondromalacia; 30% disabling for recurrent subluxation of the left knee and 10% scarring of left knee giving him a rating of 60%. On June 8, 2011 he was granted TDIU effective May 2009 and decision stated the following: 20% for residuals of cervical myelopathy, Brown-Sequard Syndrome, with quadriparesis, status post anterior discectomy, fusion, and plating at C3-C4 effective May 2009; 10% Right Knee condition associated with recurrent subluxation, left knee effective May 2007; and 10% Left Thigh Atrophy associated with status post fracture left tibia tubercle with osteoarthritic changes and chronic chondromalacia. It also states: "Your overall or combined rating is 70% effective May 2007 and then increased to 80% effective May 2009, however you are being paid at the 100% rate because of IU".

As stated before he gave VA PCP his medical records in October 2008 (he got out of hospital the end of September 2008), and VA PCP entered hospital record information in VA computer system. He had a C&P exam in November 2008 and examiner stated in exam under assessment in part: "and he has a recent fall that is at least as likely as not the result of the weakness and locking of the left knee. This fall was significant, as it resulted in a herniated cervical disc requiring fusion and discectomy as stated above. As a result, he has moderate to severe functional loss and limitations". Because his VA PCP questioning him about 2008 fall and with VA PCP and C&P examiner questioning and writing C&P examination reports about it led my husband to believe that his claim was filed (informal/inferred). We are saying that his earlier effective date should be August 15,2008 whenhe was admitted in hospital (he was operated on August 16,2008) and not May 2009 when he filed claim because he thought and believed that when he gave his VA PCP hospital medical records of fall that constituted a claim.

After examination in November 2008 he was waiting for a 100% rating for convalesence for 9 months of physical & occupational therapy and hospitalization. Imagine his surprise when they told him in May 2009 that no claim had been filed and that he had to file one. His VA PCP nor C&P examiner never told him that their examinations and write ups of his 2008 injury didn"t constitute as a claim.

I hope this clears up some of your questions.

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