Might be doing first NOD - advice appreciated

[JustGettingStarted]

I am considering doing my first NOD. I received 20% for peripheral neuropathy (pain and tingling in my arms and hands) secondary to Cervical Spondylosis (narrowing of the spinal openings in my neck) for both my left and right sides in February 2017. I just received a copy of my C-File that I requested back in July 2016, and it has the C&P exam that was done on me for the peripheral neuropathy. In the C&P exam, I was clearly rated for SEVERE pain on my non-dominant side and moderate numbness and tingling on my dominant side.  

I was given a 20% rating for mild conditions on both left and right side, but from the DBQ the doctor submitted it looks like I should have been given severe to moderate ratings, which would be 40% for my dominant side and 30% for my non-dominant side.

Do I file a NOD and request a DRO review?  

Am I missing a reason why the VA only gave me 20% on each side?  I have attached screen shots from the DBQ.  

Code 8710: Neuralgia of the upper radicular group. Neuralgia cannot be rated higher than moderate, even if it is severe. If the condition is moderate, it is rated 40% for the dominant and 30% for the non-dominant. If it is mild, it is rated 20% for either arm.

This is the quote from my decision package:

"Service connection for left upper extremity radiculopathy (peripheral neuropathy) has been
established as related to the service-connected disability of cervical spondylosis.
● We have assigned a 20 percent evaluation for your left upper extremity radiculopathy
(peripheral neuropathy) based on: • Mild incomplete paralysis of the minor extremity
● Although the lower radicular group and middle radicular group nerves were shown to be
affected, only one evaluation is allowable in this case. This rating is based on the highest
rated nerve.
● A higher evaluation of 30 percent is not warranted for paralysis of the middle radicular
nerve group unless the evidence shows nerve damage is moderate.
● Service connection for left upper extremity radiculopathy (peripheral neuropathy) is granted
with an evaluation of 20 percent effective May 11, 2016, the day we received your intent
to file, with your completed application received on October 29, 2016. VA examination
conducted in support of your claim notes that your noted radiculopathy is related to your
service connected cervical spondylosis."

Edited June 6, 2017 by JustGettingStarted
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[JustGettingStarted]

Thanks Broncovet.

 

[broncovet]

Ask your VSO for some evidence he submitted a CUE.  He should have a paper or e trail.  You will need that if you get into a fight with VA about the effective dates.  

[JustGettingStarted]

Broncovet -  since the CUE dates back to the date of my original claim, the effective date won't change and I also re-filed within my original "Intent to File" date.  The VSO produced a cover letter that says he sent the CUE to the Data Inprocessing Center, but that proves only that he did a cover letter, not that he actually sent the documents in.  

 

[broncovet]

I humbly disagree.  If you received a "cover letter" via fax with no accompanying document, dont you think its your responsibility to notify the sender and say, "gee, I got the cover letter, but no attached document..can you please re send it?"  

In a similar manner, Veterans often send a "proof of mailing" a document.  Sure, they could have mailed to VA a Donald Duck Comic book, but, with a post office receipt signed by the recipient, this serves as "proof of mailing" and proof VA received the said document.  

What is going on here is that VA has  presumptive that when a VA official says he mailed something, then the court beleives him.  

When a Veteran says, "I mailed that".  He is not beleived.  However, when he has a post office receipt signed by the VA official receiving the letter, then its received.  

In a similar way, if you have a receipt that your VSO faxed this to VA, then that should suffice.    Its called the "presumption of regularity".  VA gets it, we do not.  But, we can rebut VA's presumption of regularity with a valid document from the post office.  

Here is my advice.  Go ahead and try to get sc for the applicable conditon.  When the decision arrives, if the effective date is wrong, then appeal the effective date.  If VA says, "we did not get your xx document", then pull out your "proof" it was sent by the VSO.  This is my advice.  

[JustGettingStarted]

Hi broncovet,

All this transpired while I was still in my original "Intent to File" date which I did on eBenefits.  So the second time around, I submitted the claim myself in eBenefits and have the very same "Intent to File" date.  Hopefully the "Intent to File" date won't even matter.  If I win the CUE, the pay will be back-dated to my retirement date in 2009, not my "Intent to File" of Oct 2016.  

However, I started this thread mainly because I am faced with doing my first NOD for another matter.  Please read the orignal post and look at the attachments.  I hate doing a NOD with a request for DRO Review, because another veteran with same condition has had a NOD request at the same VARO for over 600 days.  I don't know if I would be better off doing the "non-existent" request for reconsideration first, and file the NOD before my year is up if nothing happens with the reconsideration.

[broncovet]

The effective date (even if its CUE) will be the later of the "date of claim" or facts found, which is the date the doc said you were disabled.  There ARE a few exceptions to the general effective date rule, and one of them is when you apply within a year of exit from service, your effective date can be the day after you exited service.  

If your "intent to file" was 2016, and that is the first time you filed, you wont get benefits earlier than the date you applied.