Earlier Effective Date

[paulcolrain]

wondering if anyone can tell me your thoughts.

i was denied S/C in 2005. the reason for my denial was no service records at all could be found if they are later found then they will review again i did not appeal this.

in 2009 they found my service treatment records and granted me 10% for lumbar strain. i immediately put in a NOD.

they said they received my NOD and they also said they are working for my increase of lumbar strain. (confusing)

DRO in 2011 says no increase is possable i appealed this to same time frame inside the nod time frame.

june 2011 another c+p was done and they awarded me 40% effective date as of the date of C+P exam.

i said that im ok with this 40% but not ok with the effective date because this is new and material evidence put towards and original grant of service award that was re-opend during an appeal period.

they said that i am actually creating a new appeal because i was granted an increase.

my point is,,,, the 10% awarded was an original grant of service for lumbar strain in wich i always said no it is a lot worse than that. within this appeal period i was granted 40% on my original award but they said that was a new award to an increase.

they did pay me retro for the 10% back to the original date of claim 2004 but keep telling me that there was no time my c+p DOc said it was any worse than that.

[broncovet]

My advice is to follow the advice of Chris Attig, on the wording of your NOD:

Include the portion in blue in your NOD.

If you dont have a copy of your cfile and your C and P exam, get one. Check and see if the C and P examiner actually wrote that the date of the exam was the date that your increase actually occurred, or if your rater overlooked the real effective date the doc stated.

If, indeed, the C and P exam is defective, then you will need to attack it.

If the C and P exam is correct and your rater misread it, then you need not attack the exam.

[paulcolrain]

actually now that you mention it,,, the c+p exam doesn't really read like that. it shows that i have forward flexion of 10 degrees with pain so thats what they went on. he never mentioned when this 10 degrees started. but i dont have any other exams till that date stating forward flex at that. the others say 90 degrees. my point was they were all not doing the correct degrees of movement but i cant ever prove that also this Dr. finally seen me during one of my worst days and the previous i assume didn't.?

[broncovet]

Here is the deal. What the doc says is "facts found" , UNLESS you can prove otherwise. To rebut the docs C and P exam, you need another doc to opine differntly, that is, an IMO/IME or another VA doc who gives a more favorable opinion.

In other words your words wont fix a bad c and p exam. Only another docs words can do that.

Since you have apparently read the exam and its defective, you need to file a nod and challenge the exam, using the words in blue. Or, you can get an IME/IMO, and submit it as "new and material evidence" under section 38 cfr 3.156 in some circumstances.

[paulcolrain]

what about this law.

38 CFR 3.400(q) N & M evidence other than service department records: (1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered.

my point here is,, i got the increase based on a new exam while my claim was in an appeal process/ i was still under my nod when the increase happend.

[paulcolrain]

maybe they are using this law ?

With respect to service connection claims that are granted following the submission of new and material evidence, governing regulation provides that the effective date of the award will be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(1)(ii), ® (2014).

im not to sure what the difference here is ??