Incorrect Effective Date

Stephanie · October 24, 2006

I'm in the process of an appeal for an earlier effective date on a recent increase in disabilty compensation, and I'd like to get an opinion on how they apply the dates for my specific situation.

I filed a claim for a skin disability in October of 2001. The VA granted the service connection and assigned a rating of 10% in Feburary of 2003. In March of 2003 I filed an NOD stating that I felt the condition warranted a 60% rating. They came back and stated my condition increased to 30% and they made it effective to October 2001 (date of original claim). I filed another NOD within the one year time frame and they denied the claim with a Statement of the Case in June of 2004. I filed a notice that I would like to appeal. While awaiting the appeal I had my VA primary care physician write a report that the condition warranted a 60% rating. Finally in January of 2006 the VA granted me the 60% rating, however the effective date only went back to August of 2005 (the date my doctor wrote the report). Which leads me to where I am today.

If you file an original claim and it is on continuous appeal for 5 years and never finalized, shouldn't the effective date be the date of the original claim? I find it funny that they retroacted every rating increase to the date of original claim, until it the increase changed my monthly disability payment.

Anyone ever had this problem, and if so, how was it resolved?

Berta · October 24, 2006

Stephanie-Welcome aboard here veteran-

you have done well so far with your claim and this is a common problem vets have to check for- the VA will often make errors in retro payments.

"Finally in January of 2006 the VA granted me the 60% rating, however the effective date only went back to August of 2005 (the date my doctor wrote the report). Which leads me to where I am today"

I would certainly challenge this with a NOD if the medical evidence warranted a rating of 60% prior to the report that said it did.

Did the doctor state when the disability actually rose to a higher level than the 30%?

It seems to me they need medical statement that from Oct 2001 to August 2005 your disability was in the criteria for 60%.

I have seen this done a lot in the past years- the VA picks the date of retro based on the date of a medical report.

They gave one of my local vets 40% for diabetes and used the date of his C & P for retro- DUH! He proved he had diabetes in the service and had filed his claim 12 years ago.

I told the vet if they dont cough up the rest of the money they owe him he could file a Sec 1151 claim and state he was disabled by VA care, if he got diabetes at the C & P!

They are working on his proper retro now.

If the VA does this to many vets and they don't question these errors-the VA saves money that belongs to veterans!

I am thinking- you could ask them to Reconsider the retro and that might go faster than a NOD-but you would still have to watch out for the formal NOD year of appeal date-

Either way- medical evidence should show that they erred in the date they used because the 60% did not happen the day the report was written.

Edited October 24, 2006 by Berta

vaf · October 25, 2006

We encountered the same problem regarding a claim for hypertension. We overcame that through evidence the VA overlooked in the service medical records of numerous high B/P readings before my husband retired. They rated it effective the date of the C & P exam, which was ludicrous. We appealed it to the Board, and were granted an earlier effective date, back to the initial claim date in 1993.

Do you have evidence that the severity of the skin condition equaled 60% while you were active duty? What medication in what strength were you prescribed to treat it? Any side effects from this medication? Could your doctor say with any degree of certainty that the condition has existed for several years, as likely as not while you were in the military?

Berta · October 25, 2006

I was thinking too that if this involves using creams pr skin preparations that affect your clothing-maybe you would be eligible for a clothing grant.

It isn't much but this BVA decision says why it should be applied for as soon as possible, if the med evidence supports the need for the allowance:

"Except as provided in paragraph ©(2) of this section, the

application for clothing allowance must be filed within one

year of the anniversary date (August 1) for which entitlement

is initially established; otherwise, the application will be

acceptable only to effect payment of the clothing allowance

becoming due on any succeeding anniversary date for which

entitlement is established, provided the application is filed

within one year of such date. The one-year period for filing

application will include the anniversary date and terminate

on July 31 of the following year. 38 C.F.R. § 3.810©"

This veteran received a clothing allowance due to a skin disorder:

veteran is entitled to a clothing allowance if he: (1)

"because of a service-connected disability," wears or uses

a prosthetic or orthopedic appliance (including a wheelchair)

that tends to wear out or tear his clothing; or (2) uses

medication that a physician has prescribed for a skin

condition "due to a service-connected disability" that

causes irreparable damage to the veteran's outergarments. 38

U.S.C.A. § 1162; 38 C.F.R. § 3.810.

from:http://www.va.gov/vetapp99/files1/9906183.txt

Stephanie · October 25, 2006

Thanks for all the information.

My condition involves large puss filled boils to occur on over 40% of my body, and currently there is no cure, so I wouldn't be entitled to any special allowances. I was thinking my grant of the 60% rating might be considered a difference of opinion since my condition has gone unchanged since my original claim date in October 2001. I will go to my doctor and see if I can get another report that states I had this condition since that date.

Again, thanks for the help!!

Ricky · October 25, 2006

If you can get the doctor to say that the condition, in its present state, was the same when you filed the original claim then the ED should be the date of the original claim. If not then VA is more likely than not going use the ole staged rating rule to say the 60 percent level was not met until the doctor said said so in 2006. NOD, NOD, NOD, IMO, IMO, IMO.

Ricky