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How Does 100% For 6 Months Then Re-Evaulation Work?
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TiredCoastie
How does this work? Do I have a leg to stand on should I continue to appeal a DRO decision on an appeal
38 CFR part 4 has several listings in which conditions are to be rated at 100% when they first occur, then evaluated for residuals after 6 months for a final rating. Some examples are the various causes of stroke under 38 CFR 4.124a. There are also a number of heart conditions with 3 or 6 months at 100% then rerated based on specific criteria in 38 CFR 4.104.
So if a veterans has, say, a stroke, then applies for service connection and a disability rating AFTER the stroke has occurred, does the VA then pay the 100% for 6 months then whatever the residuals rating would be? Or, because the veteran applied for disability related to the new condition AFTER the stroke occurred, because the effective date of the disability is AFTER the stroke actually occurred (and likely more than 6 months afterward), does the VA only rate residuals and does not provide the 100% for six months?
Here's why I'm asking. I had a TIA within a year of discharge in 2011, probably 1 or 2 on active duty before then, and probably 1 or 2 after being out a year. After battling the VA for several years, a DRO just granted me 10% and SC for "TIA" based on the one in 2011, which was the clearest case for SC. I cannot argue with the 10% residual rating which I believe is accurate. However, because I first applied for disability related to this condition in 2012, the effective date is beyond 6 months of the 2011 event. The DRO decision did not grant me 100% for 6 months. Rather than certify the appeal and send it onward, the DRO had pulled it back from going to the BVA and decided it "in my favor" instead. As an aside, I provided evidence of an underlying condition which causes cerebral thomboses with that condition starting a couple of years before I discharged which the DRO did not rate but stuck with a condition undefined by 38 CFR part 4 which he or she called "TIA."
Meanwhile, while waiting for a "reconsideration claim" to process in 2013 (don't do one of these reconsideration claims, by the way) after I was initially denied SC for this condition, I was hospitalized for what could have been a TIA. With an effective date of 2012, this event could be rated at 100% without any controversy if I can prove it was a TIA. In fact, I attempted to have this medical evidence considered by passing it through the VAMC but it does not appear that it was considered based on the DRO's decision explanation.
I'm trying to decide if I should submit another Form 9 of the DRO's decision arguing for a clearer SC'd condition based on the evidence I provided as well as 100% for six months based on the 2011 TIAs as well as decide how to handle the 2013 event and could really use some advice. If I've already lost because the 2011 event occcurred prior to the effective date, then maybe I shouldn't waste my time but figure out how to get the 2013 event rated? Would I continue the appeal or submit a new claim?
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