Effective Date Question

[justrluk]

I appealed a decision dated 2008. The decision reiterated that the decision made for a condition filed and granted in 2004 was reduced due to it being pre-existing/aggravating a pre-existing condition. As I understand it, if I win the appeal, the VLJ can decide that the decision rendered in 2004 should NOT have been reduced, thus backing up the date of rating to 2004. I worked this out on a spreadsheet and see that it would have also changed my overall percentage by a 20% increase. If through the C&P, the VA decides that the condition got worse since the appeal was filed (let's say 2010), this would also have changed my rating in 2010. So:

1. If the VLJ decides that the 2004 rating was reduced in error, is 2004 the new effective date for the corrected rating?

2. If the C&P results show that the condition got worse since I filed the appeal, when might the effective date be? Would it be the date of filing, or the date arbitrarily decided by the VLJ, or???

3. If both conditions are granted (error in first decision, then an increase due to the condition getting worse), what then?

As fast as this train is moving, I don't want any surprises. I realize this is all speculation, but would like to at least be prepared for what could happen.

As I understand it, the VLJ can either deny, grant in partial or grant in total the issues on appeal. The VARO has already stated that they cannot change the decision from 2004 (but the VLJ can). So for those that have experienced this, would the VARO grant (if justified) an increase due to the condition getting worse, then hand off back to the VLJ for the rest?

Just confused and moving way too fast to understand what's really happening here.

[FormerMember]

The VARO can change any decision revoked if it can be proven to be CUE. 38 CFR § 3.105 discusses this in detail as does § 20.1403.

1. If the VLJ decides that the 2004 rating was reduced in error, is 2004 the new effective date for the corrected rating? Yes.

2. If the C&P results show that the condition got worse since I filed the appeal, when might the effective date be? Would it be the date of filing, or the date arbitrarily decided by the VLJ, or??? Your date of claim will always be the date of entitlement. If a decision is reversed (CUE) on appeal and the old original date of filing is reinstituted, the date evidence proves an increased rating is deserved for a disease/injury will be the date of the exam or record showing the increased disability. Fenderson v. West (staged ratings).

3. If both conditions are granted (error in first decision, then an increase due to the condition getting worse), what then? You get more money.

The only way a VARO can revise a decision (CUE) would be if you never appealed it to the BVA. If you did, you have to file the Motion to revise the decision with the BVA. Obviously, the VA cannot have the VAROs across our fruited plain revising VLJs' decisions. That would be uncivilized judicially speaking. Each "court" has it's ascendency. Similarly, the BVA cannot overrule a CAVC decision ad nauseum all the way to the Supreme Court.

[justrluk]

Thanks, Nod. It all gets really confusing and I don't want to jump at whatever the VA sends me, but I want this fixed. I just feel like I'm in over my head even though I've worked all this myself (with those at this site, of course) and don't want to mess this up.

[ketchup56]

I second asknod's response. I'm in the same situation with my earlier pending claim. ...

[Gastone]

JLuk: Know absolutely nothing about what can & will happen. With that said, how long have you been 100SC and have you ever availed yourself of a couple Free VA Appeals Attorneys consults? If so, what was their take on your situation? Is this your 1st and only NOD? Did you opt for the Traditional BVA Hearing, and if so what led you to that decision? Any info would probably help a large number of Vets that are in or could be in your situation.

Thanks

Semper Fi

Gastone

[justrluk]

Gastone,

Thanks for the comment. I have not approached an attorney yet. I have appealed issues before, but had them resolved at the DRO level. This NOD has been in the works since '08. I was going to wait to see what the VLJ decided before going down the attorney route. I figured once (hopefully if) it gets to that point I would be headed to the CAVC anyway. If I let it go that far, I would find a lawyer and let him/her fight it out. I'm really tired of fighting this issue, though and am already at 100%. Even so, a little retro can really help around the (very needy) house.

[FormerMember]

If you are claiming CUE at the BVA level, make sure you enunciate each facet and delineate the rationale. CUE allegations have to be anally correct. You can't shotgun a litany of "They dissed me in 04". Each error has to be explained clearly. If it is one of evidence (controversy), it can only rest on evidence available at the time that was not correctly interpreted. It can never boil down to a disagreement with the way the evidence was decided. Either the decision was clearly and unmistakably correct... or it wasn't. If it is case (a law broken), you have to point specifically to the right one(s). Finally, you have to prove that the outcome, but for the error, would have been materially different (more money in your pocket). Think of it as a two legged stool until you get to the third leg (changed outcome). If you prove all three, you win.

clear prop