2006 Appeal Won (Back), R.O give wrong effective Date.

[marinejay]

Hi All,

 

IT's been a while since i posted but I need some help form the experts regarding a BVA decision.

Here is a quick cliff notes version of my appeal for increase for back (IVDS)

In December 2006, I put in a claim for an increase for my back which was rated at 20%.  In December 2007, The VA denied my claim but revised the rating from  low back strain, to Degenerative joint disease and radicular symptoms of the lower extremities.  I then asked for a denovo review and was denied, so I decided to appeal to the BVA, in 2008.    Fast forward to 2012 and I finally got a docket number, my claim sat for another four years until I had my hearing in June 2016. 

In November 2016, the BVA granted me an increase from 20 to 40%.  So I'm like good!  finally won something.   In the Conclusion of Law, it states "Thoughout the entire period on appeal, the criteria for a disability rating of 40% for degenerative joint disease, strain and IVDS of the lumber spine have been met.   So I kept checking e-benefits to see when they will were going to update my rating.  On January 5, e-benefits was finally updated and the RO made the effective date for the back increase May 13, 2013.  That was the day I had my first  C&P for my bilateral lower sciatica.  I had evidence from before showing that my condition has worsened but the R.O made the effective day in May 2013, which makes me loose 7 years of back pay.   I haven't gotten the R.O letter as yet to see what it says, but I DEFINITELY plan to appeal the effective date.

 

My question is:  Shouldn't my effective date been December 2006 from when I put in the claim?  The BVA letter clearly stated that "throughout the entire period on appeal, the criteria for a disability rating of 40% have been meet".  I want to know why they made the effective date May 2013.   Based on the BVA, do i have a good chance of winning my appeal for the EED.  PLEASE HELP..

 

 

 

[broncovet]

After you get your decision, then consider an effective date appeal.  Remember, VA says your effective date is the later of the date you applied, or facts found.  It sounds like they allege you did not meet the second part of this until later.  

You will have to read over your cfile to see when the "facts found" show you met the criteria, then allege you met it earlier.  The "date of claim" is only half of it, you also have to show that a doctor had diagnosed you, and the applicable symptoms also.  

[Gastone]

I believe your NOD Clock regarding an EED, will start the Date of your yet to receive, Award Letter.

You've waited this long, hold off filing your NOD for 4 to 6 mos.  I recently 05/16 used an "Official Request  for CUE Review," for EED. Attached copies of VMC Med Recs supporting the EED. Within 2 mos (07/16), the new Retro Hit, an additional 24 mos was Deposited.

Within a week of filing the "Request for CUE Review," it showed up on my E-Ben as a New Claim.

I was discussing my probable NOD with a retired former RO DRO, that now works for my VSO. He recommended the "Request for CUE Review," sounded righteous, so I faxed the VMC Med Recs to him. He filed it that afternoon.

Check with your VSO RO HQ, discuss your situation regarding your EED and the Med Evidence supporting your EED. Request they file the "CUE Review Request," on your behalf. Should be able to walk it, right down the hall to the RO intake desk.

Semper Fi

[marinejay]

Thanks Guys.

 

Now that I remember, in May of 2013 was when I had Dr. Bash do and IME (Independent Medical Exam) and the  BVA letter states "Range of Motion testing by a private examiner in 2013, which  considered  pain, fatigue, weakness and decreased endurance on repeat testing" and was made after initial and after 3 repetitions with notation of additional losses, " see May 2013 Dr. C.B report.  This supports the veteran's statements of additional functional loss due to pain and flare ups in support of a higher rating." and I guess the R.O used this as my effective date.

 

So I guess I can also  say I won my appeal on Dr. Bash IME,  and as a matter of fact Dr. Bash 2013 IME  helped me win my 3 claims (total of 10 conditions I think) via appeals  after getting denied via the original claim.  (ie  upper neck 20%, bilateral radiculopathy 20% each, sleep apnea 50%, (MDD 50%, his opinion along with my va pysc who was the director of the dept b4 he left help me win, it also helped that my c&p doc was one of his resident student so he pretty much rubber stamped  it.) and bilateral lower radiculpathy 10% each).

 

So it looks like I may be going back to Dr. Bash for an IMO this time to support an early effective date and hopefully he doesn't try to charge me alot of  money.  My other thing is, since the BVA letter clearly states in the conclusion of Law  "throughout the entire period on appeal, the criteria for a disability rating of 40% have been meet".  which began in 2006 means nothing huh!

 

Thanks for your replies every one.

[Berta]

I would hold off on asking for another IMO because the BVA decision is Evidence of the EED!!!!

Also can you scan and here ( Cover C File# etc) when you get the RO decision?

It definitely might need a CUE approach from what I see here.Gastone is Right!!!!

Gastone, it sounds like maybe your rep has read my GCY stuff here ( Go CUE yourself VA claim  filed within the appellate  period).

If they committed CUE in the award ,that will be an easy CUE to write  and file and the BVA decision is a legal decision, which they are supposed to adhere to.

When VA commits a valid CUE in a recent decision, it can be fixed faster than simply filing a NOD...but it doesn't stop the NOD clock, yet you have Plenty of time .....

The decision will reveal how to shape the CUE.

[RyanS]

If the BVA states that your overall severity was 40% for the entire claims period, that is a finding of fact that cannot be overturned by the RO or the CAVC unless it is clearly erroneous. You should file an NOD that has the same elements of a CUE claim without filing it as a CUE claim. CUE claims explicitly are harder to win than an NOD for an earlier effective date. Don't box yourself in like that. The RO overturned a BVA finding of fact unlawfully. The record, as stated by the BVA, states one thing and one thing only...then entire appeals period is supported by a 40% rating.

[Berta]

A claimant can file both CUE and a timely NOD,if they dont resolve the CUE within the NOD time frame so Mark your Calender. 

I had only one main case at the BVA (actually 2- but one was rendered moot because I won at the RO level on a different theory of entitlement and didnt know I could have withdrawn the appeal

But the BVA in that decision 2000? forget when(which I am sure I posted it  here) made a legal statement...I considered it a clue. About 9 years later I dug out the old BVA decision

When the VA refused to pay me a FTCA offset in 2009 for my AO DMII death claim,(BVA award) I sent the RO the older BVA decision that included that statement.I didnt file CUE or NOD.They refused to pay the offset.I used a different approach. So  I just called up General Counsel-faxed them the older BVA decision (this regarded my FTCA case and the attorney I dealt with in 1997 was stunned to hear from me again as he was the one I had negotiated the wrongful death settlement with and had told me I was very tough to deal  with), so he got ahold of some top VA OGC honcho

and when VA heard from the OGC honcho lawyer , they paid the offset.

It was clearly a legal error.The BVA statement I sent to them rested on established VA case law.

The decision here from marinejay seems to be a CUE but I sure am not 100% sure because we have not yet seen the actual decision.

 

 

 

 

 

 

Edited January 9, 2017 by Berta