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DRO APPEAL awarded but not retroactive to Original claim dates

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cham1968

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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On 10/9/2016 at 6:48 AM, Buck52 said:

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

Thank you for the information. And yes I have filed the Form 9 withing the requested time. Now I guess the wait begins again. 

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On 10/8/2016 at 10:55 PM, mrmark1999 said:

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 

 

On 10/9/2016 at 8:09 AM, broncovet said:

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.  

thanks for the information I will follow through as I have more time than money. 

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"b.(2) When new and material evidence is submitted within the appeal period or prior to an appellate decision with regard to a claim for increased rating, the effective date for any increased rating is the date on which the facts establish the increase in disability occurred or the date of the original claim for increase, whichever is later."

im not really sure but i think this is what i need  

I was denied then I got a new IMO and was awarded 20% after that IMO date  

and 0%  from the date of the original filing of the clam

the retro active pay only started from the second IMO date not the original Clam

how do i word that in a NOD 

i read all the 38 CFR 3.157.and dont know how to spell it out in the new NOD it had a lot of legal ease and seemed confusing  

any help would begrateful

mark

 

i submitted an appeal for a early Effictive date back to the original filing of the clam

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THANKS Broncovet!    I can never find this regulation when I mention it here:

"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."

It is legal mumbo jumbo but the VA correctly used this regulation for my accrued claim,when they finally realized they couldn't get out of paying the claim.

I usually mention this when the veteran has a SSDI award solely for SC that might hold a favorable EED that VA will accept..

This is how VA used it:

My husband applied for higher rating ( was 30% SC for PTSD) in addition to his Section 1151 claim.

He also applied for SSDI

SSDI upon reconsideration(they did award SSDI solely for his 1151 stroke) also awarded Solely for PTSD with a very favorable EED of Nov 1991, the last day he worked.Because I proved they broke one of their own SSDI regulations.

Both awards were based solely on VA medical records.

The SSDI PTSD award came within the year after he had formally applied for a higher PTSD rating.

VA ignored his TDIU application, because he died, and then in 1997 , almost 3 years after he died , they- based on all evidence of record ( they had ignored much psyche tests etc at first) properly awarded the accrued amount, 100% P & T for SC PTSD  with a EED of Nov, 1991,

as it was 

the first ascertainable date (from SSA) that my husband's SC PTSD has caused him to be 100% P & T.

The irony is that both SSA awards were based solely on VA records.They could have resolved his PTSD claim in his lifetime.And his 1151 claim.

The regulation can be applied to any type of increased rating claim....if the medical evidence warrants it and the evidence  clearly establishes the bases for a higher rating prior to a C & P exam result.

Us AOers went through that. NVLSP made sure we all got the best EED.But it can apply to any claim for increase

if the medical evidence warrants it and the evidence  clearly establishes the basis for a higher rating prior to a C & P exam result.

 

 

 

 

 

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