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Confusion On Decision Of Effective Date


PainterBK

Question

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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I would contact the following firm for help.

http://www.vetlawyers.com/contact.aspx

Thanks for responding Carlie,

I filled out the contact information on their site. Was I reading correctly about the 50% rating being protected from 1977

but not for compensation? Seems a little off. I think my claim might have been collecting dust for a long time if I didn't

call the 202 case management #. Thanks for all you do.

Bob K

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Read the TDRL q and A:

https://www.pdhealth...s/TDRL_FAQs.pdf

In it, it states that TDRL will last a maximum of five years. Did you apply at the VA back then?

I agree with Carlie..take your C file to a law firm and ask them.

Thanks for responding Broncovet,

I was sent to Walter Reed for treatment in Aug 75 - Feb 76. When I left there I was placed on TDRL @ 30% & was on it until 77 when I was

discharged & given severance. I evidentally had applied for VA Comp at Walter Reed & didn't realize it. I was really in tough shape & heavily

medicated. Communication & info back then was like the dark ages compared to what it is now & I didn't realize or understand what my options

were. The money I got from the VA last week was the first payment I ever received from them. I found out in 2010 by chance when I applied for

medical @ my vamc that I had been rated @ 50% since 1976, but in 76 I was receiving TDRL insead of VA comp. The language in

thed decision is very confusing. One of the things I'm trying to figure out is if they are saying that the rating of 50% is protected. They rated me

@ 70% last week, so I'm not sure what they are saying happened to the 50% rating. It was in place according to the records in my CFile from

76 to the present. I guess my case fell through the cracks, which is understsandable, given the volume of cases. Don't get me wrong I appreciate

everything I've received from VA to this point. I just wish I had known it was available all along. With my affliction its difficult to communicate

my thoughts in person or even on the phone. It took me a couple of months just to be able to post my first text. Thats one of the reasons a site

like this is a Godsend for me. Thanks Again. Bob K

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