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cham1968

DRO APPEAL awarded but not retroactive to Original claim dates

Question

Time Line

  1. filed initial claim July 2011
  2. awarded in August 2013
  3. filed NOD September 2013 for increase of three disabilities 1 rated at 10% other 2 rated 0% 1 denied
  4. received C & P exam August 2016
  5. awarded 20% and 10% and 10% increases September 2016
  6. Radiculopathy denied however an EMG dated 2012 confirmed it, only Xrays and C&P

I'm searching for the proper legal terminology or can I state in my own words my reasoning for the earlier effective date as my original claim date? The 3 disabilities were all previously service connected. It's just hard to understand how you can file a DRO on your initial claim and they take 3+ years to complete it and then make the effective date the date of the C & P Exam. If anyone has the correct or most appropriate information to put on my Form 9 please chime in. Also, if there's an opinion as to whether this will go all the way to the BVA or be handled at the RO. 

 

any info would be greatly appreciated. 

 

thanks to all 

GOD BLESS

KC

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OK this just happened to me too i was awarded a 0% rating from the original came date after being denied i appealed it was awarded 20%

filed 2009 denied 

nod

2010 new medical opinion awarded 20% starting at 2010 

said a t C&P i was in no pain i just had surgery 5 days earler  and was on oxycodone i had no pain at all and said i couldn't feel much (duh looking back) 

filed a nod for earlyr effective start date  3 years later denied because i was  not  in pain at the C&P now im stuck filing another nod

did you have a civilian doctor diagnose your condition before the C&P ? if so you might need to include that info with the doctors records 

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Basically the Form 9 is the form you get to tell more of your story after you recieved and read your SOC ''Statement of Case'' and back it up with evidence  and let them know why you disagree with the decision, explain in full detail and send in any evidence you have.(don't send evidence you already sent them) be very precise;specific on why you disagree...Lay it out to them so they understand and can collaborate your lay statement! attach extra paper if you need too!

also if your homeless/starving  ect,,ect,,, or need this claim adjudicated ASAP FOR APPROPRIATE REASONS...LET THEM KNOW IN YOUR STATEMENT.

 Also you have the option to decide on a board meeting and where an what kind board meeting you want.(it has these options on the form  ( remember choosing a board meeting will delay your claim)

The BVA will look at it and decide if it should be remanded back to  the RO for proper decision.(could be a good thing) but not always the case.

if not then you should be given a BVA Docket #  and the time-line could be years of waiting.

(one would think they would hurry up and get to your case because of the EED..but the VA Don't seem to care one way or the other.)

jmo

........Buck

Edited by Buck52

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Its a common way VA hornswaggle's Veterans.  If you read the regulations, the effective date is the later of the "facts found" (the date the doc said your increase occurred), or the date you applied.  

You need to file a NOD.  Here is why.  The doctor should have stated that your increase in symptoms happened on xx date.  Often they do not do that, so the VA assumes that it is today (the date of the c and p exm).  

The doctor should have read your medical history.  Oft times, you went to the doctor when stuff got worse.  "Gee doc, is there anything you can do for this?  It hurts bad, worse than before."

When you went to the doctor, and he documented that your condition worsened, should be your effective date of increase, not your c  and p exam, after VA jerks you around for 4 years.   

Think about it.  YOu are just fine, then you go get a c and p exam, and poof:  the minute the c and p examiner examines you, you get very sick.  

In other words, you go for a c and p exam healthy, you come out disabled.  This does not happen.  Instead, you have to compel the Va to give you the date you actually got worse.  

Its just like everything else..the VA fights you tooth and nail for every nickel, so they can spend your deserved compensation on parties for VA employees, and multi billion dollar perks for contractors.  

38 C.F.R. § 3.400(o)(2) - US Department of Veterans Affairs

and 

38 CFR 3.157.  

Read these, they can lead you to an eed.  

Edited by broncovet
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In VA 

VAOPGCPREC 12-98

it states, (after about 12 pages of lawyer blah, blah, blah)

Pursuant to 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), where a veteran files a claim for increased rating alleging an increase in disability within one year prior to receipt by VA of the claim and a VA examination or other medical evidence subsequently substantiates an increase in disability, the effective date of the award of increased disability compensation is the date as of which it is ascertainable based on all of the evidence of record that the increase occurred.

 

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On 10/9/2016 at 7:19 AM, broncovet said:

In VA 

VAOPGCPREC 12-98

it states, (after about 12 pages of lawyer blah, blah, blah)

Pursuant to 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), where a veteran files a claim for increased rating alleging an increase in disability within one year prior to receipt by VA of the claim and a VA examination or other medical evidence subsequently substantiates an increase in disability, the effective date of the award of increased disability compensation is the date as of which it is ascertainable based on all of the evidence of record that the increase occurred.

 

Hello,

Does the bolded mean that it only goes back to the 2nd C&P exam date? Even though you filed an appeal of the original awarded percentage?  

In other words, they do not have to go back to the original date of filing?

Thanks

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