Effective Date

nanaeris · February 24, 2012

Hello everyone, After 4.5 years I finally got a rate increase for my bilateral knee disability. Now I am confused about the retroactive pay. I filed the claim in 2007 and was denied. When I read what the doctor wrote I was shocked because he could not have reviewed my C-file. I chose a DRO denova review which was a joke and a waste of time because he/she could not have reviewed my C-file. When I wrote my NOD I went through my C-file my self and sent the information to the Waco Regional Office. From the documentation I sent in the RO scheduled me for a second C&P exam ( it took them about a year and half to schedule the exam). I had been rated under limitation of flexion which gave me a 20% rating. The second C&P the doctor rated me under limitation of extension which gave me a 30% rating. Now the RO is telling me that my retroactive pay should just go back to the date I took the second C&P exam because the first C&P exam results and the second C&P exam result where different. Is this correct. The first C&P doctor did not review my C-file because he did not include all of my knees disabilities and the second doctor did.

jvretiredvet · February 25, 2012

It appears that the effective date was established "On basis of facts found." per 38 CFR 3.400(a) http://www.benefits....ART3/S3_400.DOC . Also, the basic introduction to 3.400 mentions "the date entitlement arose".

From what you wrote, it appears that the first mention of limitation of extension was in the second C&PE. Unless your medical treatment records show some objective evidence of limitation of extension that meets the criteria of DC 5261 for a 30% evaluation, I think you're stuck with the current effective date.

Of course, you're welcome to disagree and file another NOD.

Hello everyone, After 4.5 years I finally got a rate increase for my bilateral knee disability. Now I am confused about the retroactive pay. I filed the claim in 2007 and was denied. When I read what the doctor wrote I was shocked because he could not have reviewed my C-file. I chose a DRO denova review which was a joke and a waste of time because he/she could not have reviewed my C-file. When I wrote my NOD I went through my C-file my self and sent the information to the Waco Regional Office. From the documentation I sent in the RO scheduled me for a second C&P exam ( it took them about a year and half to schedule the exam). I had been rated under limitation of flexion which gave me a 20% rating. The second C&P the doctor rated me under limitation of extension which gave me a 30% rating. Now the RO is telling me that my retroactive pay should just go back to the date I took the second C&P exam because the first C&P exam results and the second C&P exam result where different. Is this correct. The first C&P doctor did not review my C-file because he did not include all of my knees disabilities and the second doctor did.

Philip Rogers · February 25, 2012

I feel you could go back to the original claim date but it would take some time, and may take more appeals. If it's a matter of 10%, for an additional 4.5 yrs, I would go for it. That's about $5k retro. It's up to you! jmo

pr

broncovet · March 5, 2012

I agree with PR and take exception to the VA typically using the date of the C and P exam to establish "facts found" and thus the effective date. Reason: This suggests we were NOT sick when we went into the C and P examiners office, and his exam somehow made us sick (or worse, in the event of an increase). C and P exams do not cause Vets to become sick or disabled.

The Veteran would have to be able to predict, "I think that when I go for a C and P exam, I will lose my hearing, lose a limb, and get PTSD, and become unemployed, all while in the C and P examiners office, so I will apply for benefits now, anticipating this when the VA schedules an exam"

NOoooooooooooooooWayyyyyyy.

This Veteran had symptoms of his disability when he applied for benefits. The VA finally gets around to ordering a C and P exam, and then makes the benefits effective the date of the exam.

The examiner should opine something like, "The Veterans condition began on (such and such date), based on his treatment records". The Effective date should be that date, not the date of the exam.

This is all just my opinion, but I would appeal the effective date if that is what happened to me. To help you win your effective date, start with this:

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