Can I Appeal The Effective Date?

[TiredCoastie]

Hello everyone!

I'm in the process of digesting my latest claim decision and am drafting a NOD to address a denial of cerebral thrombosis/TIAs and a lowball of the migraine increase (from SC & 0% to 30%). Can I appeal the effective date? There's a statement regarding the effective date on my migraine increase which says:

The effective date of this grant is XXXXXX. Entitlement to an increased evaluation has been established from the date of the medical evidence showing an increase in disability (Headaches DBQ completed by Dr. XYZ). When private medical evidence showing an increase in disability is received within one year of the date of the evidence, the effective date of the increase is the date of the evidence.

So, in other words, the date my neurologist signed the latest DBQ is the effective date of the grant of increase.

The problem is that I had filed for an increase about a nine months before the effective date of the grant, but was denied. In response and at the recommendation of my VSO at the time, I submitted a "request for reconsideration" claim. The NSO felt that I'd gotten a bad rater when I first requested the increase and running it through the system again had some probablity of success quicker than filing an appeal. In fact, the rater somehow missed that I had an informal claim in the system a month previous to when he or she assigned the date of that claim. Meanwhile, the NSO sent me back out to my doctors to get fresh DBQs as "new and material evidence." The signature date on the new DBQ is the date of the grant.

Looking at the situation with the arthritis in my knee, which was another contention of the latest claim along with the items I asked to have "reconsidered," I'm benefiting because the date that doctor signed the DBQ is a little earlier than the date of the latest claim. But I had made no previous request for an increase for this contention. The effective date for the grant of the increase uses the same wording and rationale as the migraine increase.

Do I have an argument here for an earlier effective date on the migraines?

Edited June 3, 2014 by TiredCoastie

[TiredCoastie]

Thanks, John! I've learned a lot from you all and see how the game is played. The tragedy is that you have a loss, and it's dead flat wrong that you do. At least some of us can gain from that loss. Thanks for sharing!

Sure, the VA can try to reduce me. Trouble for them is that all of my conditions are legitimate. Any kind of look at my conditions may well result in the opposite happening...they may be forced to increase at least one or two.

My sense is that the VA is trying to keep from having a bunch more of us at 100%. Throwing me a bone of 60% was a start, but they lowballed some of my conditions. I waited a year or so, then reapplied for increases but this time with top outside medical professionals treating my conditions and willing to write about them. Now I'm at 80% and should have been at least at 90%.

[Pete53]

Anything the VA does can be appealed.

[Berta]

John said a mouthful here:

"What I learned is appeal any decision that has that VA stink on it. I lost thousands of bucks by not doing that in my original claim. The VA must have screwed a million vets out of retro using tricks and BS. When VSO's say don't appeal because the VA might reduce you I say that has not ever been my experience in 40 years."

Just about every decision I have ever received in the last 20 years from VA has contained a legal error in the decision.

I have many decisions like yours too...whereby the VA tried to get me to buy what they were selling, by stating some BS reason that has absolutely no legal basis in fact.

I asked them to cough up a regulation they tried to use against me for my last CUE claim, and of course they couldn't because no regulation existed to support what they stated.

They say a specialist is working on a NOD I filed.

My CUE thermselves Request was filed before the NOD on that claim.

I also filed a request for NOD deadline for good cause, because if a claimant gets an illegal decision, their ability to prepare a proper NOD is compromised obviously, by the VA's legal error.

I geared that claim and the NOD solely for the BVA. The BVA can read.

My VARO has proven to me many times they cannot read ( or willingly can read enough to manipulate the regulations to our detriment.)

I agree with John that this has probably happened millions of times.The very fact that many veterans do eventually succeed on their claims,. says to me, they should have succeeded in the first place, if the VA properly adjudicated the claim and considered all of the probative evidence.right from the gitgo.

I have had many VA legal errors corrected....some were easy...like in my veteran daughter's case,when VA Educational Dept (an oxymoron sometimes) forgot her 7 years of Military service to be added to her Chap 35 deadline.

And my Nehmer award came fast but only because I raised a big ruckus of an illegal denial.

Any denial or award has to be carefully gone over right away , to see if a legal error has been made in the decision because that error will, as likely as not, screw up everything else from that point on regarding your claim.

I think the VA has done this countless times ,as John said.

And even in awards like I got under Nehmer.....and I guess they thought since they awarded the AO IHD claim and my past CUE claim in that decision, and gave me a five figure award that I would be happy and go away, not realizing I had been screwed, based on VA case law and evidence itself , in VA's possession at time of the veterans' death, out of an additional five figure amount they still owe me.

I think they do this a lot to widows.

"accrued benefits" under Nehmer means the survivor gets ALL AO accrued

Accrued Benefits under Section 1151 means the survivor gets ALL 1151 accrued.if the veteran already had an established 100% separate disability.

I got 6 months, they still owe 14-15 months .....

ALL survivors MUST filed for accrued within the first year after the veterans death if a claim was pending.when they died , in non Nehmer and 1151 issues.

Or they prove CUE over a past erroneous decision as I did.,reminding them in that claim, that my accrued claim had been filed within the first year after my husband's death.

They know survivors are grief stricken and they equate that with stupidity and can count on some vet reps to not have a single clue on accrued benefits anyhow.

Edited June 4, 2014 by Berta

[TiredCoastie]

Been meaning to get back to you, Berta, John, and Pete, with a word of THANK YOU SO MUCH!

I appealed for an EED on several contentions and was awarded the ED of my informal claim after the RO CUEd themselves.

Thanks to your support and advice, this is one more win in a larger campaign.

May God bless you!