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Confusion On Decision Of Effective Date
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PainterBK
I'm trying to understand the reasoning that was used for my effective date being July 2011 instead of September 1977.
I understand some of the statutes they site, but not all. What I get out of it is the VA is claiming because I missed a C&P
exam in 1977, which I never received notice of (it has someone elses name on it & my social #) & I never filed a waiver of
retired pay(which I had no reason to because I was rated @ 10% with severance in Aug 1977) my 50% rating from 1977
is protected by law but not the compensation. Could someone with more experience take a look @ this reason for decision
& let me know if I'm reading this right. Sorry for the length. Here are the pertinent parts.
Reason for Decision Eval for schizop. reaction, paranoid type.
Rating action of May1, 1976 granted service connection for this condition 50% assigned from Feb 13, 1976.
At this time you were on TDRL & in receipt of retired pay. You failed to provide the requested waiver of retired pay.
On Sep. 16,1977 you were removed from from TDRL & awarded severance pay of $834.
The VA interpreted this notice as an attempt to reopen claim. You failed to report for a va review exam Nov. 22 1977.
App. for comp. received July 16, 2011 was accepted as a reopened claim.
Rating action of Dec. 14, 2011 erroneously continued prior 50% rating from Feb 13, 1976 without medical evidence in
part to your failure to report for exam.
The failure to provide the requested waiver (alone) does not preclude continuing the eval assigned. (see court of appeals
Selgado v Brown 4vet. App. 316 (1993) However as noted by VA Counsel Prec. Opinion 5-95 (2/6/95) VA Gen. Coun.
identified facts which relate to the issue of "continuous rated" under the applicable statute. A disability which has been rated
at or above any eval for 20 or more years, can't be reduced unless rating was based on fraud. The eval. of this disability is
protected under this provision of the law.
The grant of 50% eval from rating action of May 1, 1976 was subject to a review exam. You failed to report for exam sched. for
Nov. 22, 1977. At this point the VA was unable to eval. the severity of your condition. (see VA coun. prec. opin. 31-90 (7/17/90)
as it applies to temp. total ratings for convalescence (38 cfr 4.28) & the need for review exams & the impact on protection.
Subsequent review determined a va exam was required to determine the current existence of the condition & level of disability
(see 38 CFR 3.327) VA exam May 18, 2012 continued the diagnosis of schizop. reaction.
An eval. of 70% is assigned from July 16,2011 date of receipt of reopened claim subject to the rules of relating to payment.
Again, sorry for the length. Any opinion or clarification of this ruling will be greatly apprecited.
Thank you for your time,
Bob K
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