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..

 

 

 

[marinejay]

BroncoVet,

 

Thanks for the amazing info, it was a lot to digest, but I'll just have to do my research and this will definitely help me get started in the right direction.

[prophetmom]

On 1/25/2017 at 10:42 AM, marinejay said:

I've attached a copy of my Appeal and Decision award letter.  I highlighted the important parts of both letter.  Let me know what you guys. Think..

VA Decision & Appeal Award Letter..pdf

@marinejayThank you so much for posting this! My husband has received his "packet" (I think it is called), but has not received a letter like this yet.  I wondered what it looked like.

Edited June 22, 2017 by prophetmom
Need to tag poster

[broncovet]

I dont recommend you let the RO "get away" with an effective date that is worse than granted by the BVA.  

The RO is not at liberty to override the BVA.  There is a chain of command here, and the VARO is below the BVA.  This said, I have also had the VARO try to weasel out of an award by the BVA.  In fact, I have the RO "denying" dependent benefits that my attorney and the CAVC already agreed on, and signed a "stipulated agreement".  

Beleive me, I am going after the RO on this, but will wait until my claim is done at the BVA and implemented by the RO.  You see, the RO could give me dependent benefits THEN, and it will save me the trouble of filing another Writ of Mandamus.  Mostly, I have seen Writs are filed Pro Se, as many/most attorney's do not want to file a writ.  For me, I have bigger fish to fry, and will save the writ until after my completed board appeal and its implementation by the RO, as Im expecting the BVA decision anytime, almost certainly in the next few months, and it could be done in days or even hours.  

[Berta]

I would file a CUE on them (within the appeal period) and then follow that up with a formal NOD.

They would have to handle the CUE first.

Been there done that myself.

We have info in our CUE forum as to Getting the VA to CUE itself...within the Appellate period (one year after the decision)

No regulations  for that yet ,I asked the Secretary to issue a Fast Letter on my tactic. It has well very well for me and for 2 or maybe 3 members here.

SPO and Allan and maybe someone else.

The VA failed to honor a legal statement in a past BVA decision I had, when I won my AO DMII death claim.

I raised my issue with the General Counsel, because they were refusing to pay me a offset refund (FTCA). 

I dont know any FTCAer who ever got a offset refund except me...and the OGC called them right away and then the check was in the mail---about 7-8 months after I won the BVA case.

If the OGC had not been involved I would have instead filed a CUE on them ASAP.