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]

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

[marinejay]

Ryan,

 

YOu are right and I went  ahead and filed my appeal the week after I got my award letter.  Right now my appeal for the effective date is in ebenefits and now I'll just have to wait and see.   I talked to my VSO at the DAV and she said that I may have to get evidence showing or have a doctor  state that I was injured since 2006 when I started my initial claim.   

 

 

My argument was, if my appeal stated that I met the requirements for 40% through the entire appeal, when did the DRO use my IME from 2013 to determine my effective date.  Now I'll just have to wait and see what the VA does.

 

[marinejay]

Some help guys???????Please

[R3dneck]

Give them time they will answer. ?

[broncovet]

The effective date is the later of the "facts found" or the date you applied, with some notable exceptions, such as 38 cfr 3.156, CUE, etc.  

Based on what you posted, I agree the Board said the "facts found" was that you were 40% to the beginning of the appeal period.  This would make your effective date the day you applied.  

The RO failed to comply with the BVA order.  

You can appeal, and that is a good idea, but I would consider filing a writ of mandamus to compel the RO to comply with the BVA order (and specify that the Board found that you were 40% all along).  

As others posted, the board made a finding of fact, and the RO violated regulations by overturning the Board decision and awarding a less favorable effective date.  You will likely have to do the writ pro se, as attorneys dont like to do writs as they are regurarly denied.  However, they are denied because the ro fixes the error, which means you win.  

Filing a pro se writ is not "that" difficult.  I did it, Alex did it.  It is time consuming and you need to write and ask the RO to correct that, and to comply with the BOARD.  YOu see, the writ is not a first line of remedy, its the last after you have tried everything else.   So, you simply send in a 21-4138 and inform the RO that an error was made on the effective date as the board had made that finding of fact.  Give the RO a reasonable time to comply, say 60 days.  Then file a writ.  You can pretty much count on the RO ignoring you, so fire off the letter and use the next 60 days to file your writ.  You can even post it here and maybe people can critique your writ befor you file it.  

In your writ, you should state the purpose of the writ is to compel the RO to comply with the BVA decision dated..xx-mm-yyyy.  

Edited January 30, 2017 by broncovet

[broncovet]

The reason YOU use a writ is that it does not make sense to appeal an issue that the Board has ALREADY awarded.  In other words, the Board does not have to say the same thing twice, the Ro needs to comply the first time.  

From YOUR standpoint, however, you use a writ here, in part, because a Writ will likely occur in 6 months, while a BVA appeal, could take 5 years or more.  

Note:  I had RO non compliance with a board decision.  I was filing the writ, and decided to persue all options first, and wrote to "Allison Hickey". 

Allison passed it on to my RO director, who, eventually, complied with the board decision.  (Amazingly, the RO director at first said he complied, then, when I emailed him back and quoted from the RO decision, along with the page, and showed how the board decision and the RO decision were not consistent.   Finally, the RO director agreed and they complied. In my case, the board decision said I had to be considered for EXTRA schedular IU, and they did NOT do that.  

The RO director, at first said, "ok, Im considering you for extra schedular and its denied".  I said, good, but decisions have to be IN WRITING to be valid.  

So the RO director sent me a decision denying extra schedular IU.  I appealed, the board denied, and I hired an attorney at the CAVC level.  The attorney won a remand based on faulty "reasons and bases" for denial.  The EAJA paid 6000 dollars of my attorney fees.  I knew the RO/BVA did not have good reasons for a denial, as I knew I had evidence.  We will win it, it just will take time.  

Berta often points out RO people dont know how to read.  

Edited January 30, 2017 by broncovet