After Surgery, Lumbar Percentage Reduced, Radiculopathies Granted, What About EED?

[acesup]

Here's a (hopefully) short history:  I was rated 50% MDD, 40% chronic lumbar sprain with Degenerative Disk Disease, 10% Residuals of Hepatitis.  The chronic lumbar disability has been 40% since 2002. Prior to that, it had been 20% since 1974.   I injured my back in 1973 while active duty USAF, while moving a desk down a stairway, when the other two guys holding the desk got tripped up and dropped their side.  I am 63+ years old.

In 2007, I filed for bilateral sciatica "and/or other nerve damage" secondary to my SC lumbar disability.  This claim was lost in "Shreddergate", but reinstated in 2009 by VA Fast Letter recognizing original 2007 date.  I also filed for some other conditions in 2009, including TDIU.  The sciatica was detected (by Nerve Conduction Study) in my 2010 C&P exam, and the VA Neurologist C&P examiner did state "at least as likely as not" related to SC lumbar condition.  I also had a nexus letter from my chiropractor at the time stating "more likely than not"secondary to my SC condition.  The VARO denied the sciatica, agreeing with a C&P Nurse Practitioner examiner with the opinion "your sciatica is not caused by or a result of" the SC lumbar condition, claiming my STRs showed a "two week history of non-traumatic low back pain" resulting in a diagnosis of "muscle strain".  They add that "your private physicians have documented several intervening low back injuries including multiple motor vehicle accidents...".  I had accidents that caused whiplash twice, and thoracic spine injury once;  never lower back.  

They then state "service connection is denied because there is no evidence that your bilateral sciatica is caused by, aggravated by, or a result of your SC disability of chronic lumbar strain with degenerative disk disease...".

That issue, along with some other stuff, is on appeal waiting certification to BVA.

Now, fast-forward to the present:  In June 2016, I had surgery, fusion and laminectomy of L2-3-4-5, with two 8" titanium rods and eight screws inserted in my back.  I filed for temporary 100%, and while it was initially denied due to a missing "Op Notes" document, it was recently granted, for 4 months.  On the Decision Letter, the VA stated there would be a C&P exam to check for changes in my level of disability.   I did have that exam on May 23.  The doctor reported a somewhat optimistic Range of Motion, but I knew it was probably better than 30 degrees, so I expected VA to want to reduce me to 20%.  He also noted bilateral sciatica symptoms which he described as "mild".

Now I see on eBennies that VA has reduced my lumbar spine to 20%.  They have also added 10% for each side of lower extremity radiculopathy.  These actions show an effective date of May 23, 2017, the date of the exam.  In effect, my rating is still 70%, so I'm okay with that (not that it matters what I'm okay with).

Now, regarding the bilateral sciatica (lower extremity radiculopathy):  

Will VA probably stick with the effective date of two weeks ago, or go back to right after my surgery last year, or will they be likely to just automatically apply an EED of 2007?

If not, I don't know whether it would make sense to ask right away for reconsideration of EED, or just keep waiting for my 8-year-old appeal to reach a BVA hearing?

Thanks in advance for your input.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

 

Edited June 8, 2017 by acesup
omission

[broncovet]

You should file a nod if you dispute the effective date.  Its doubtful they will "automatically" apply an earlier effective date.  The only things VA does "automatically" are delays, denials, and glitches.  

Should your BVA appeal be awarded and it becomes moot, you can withdraw that appeal.