Earlier Effective Date

[cham1968]

OK, here goes!   Back in 2011 I became aware of VA Disability so I filed my first claim since being Honorably Discharged in 1998. On this claim I became service connected for:

1. Tinnitus(10%)
2. Lumbar Spine (10%) 
3. Bi-lateral hips (10%)
4. for a total rating of 40%.

I also received:

1. left ankle strain (0%),
2. surgical scars hips  (0%)
3. surgical scars wrists  (0%)
4. and bi-lateral wrists (0%)

Upon this receipt I then filed an 2013 NOD instituting a DRO for bi-lateral wrists (0%) and Lumbar Spine (10%). The DRO then provides a C&P on August 2016. Upon completion the VA institutes the following ratings Lumbar Spine (20%) and bi-lateral wrists (10%) which brings my total rating to 60%. In my mind and from what I've read these ratings should have an  Effective Date of 2011? Instead, the VA provides an Effective Date of 2016 which I then appealed to the BVA. The BVA in turn concurred stating that increased ratings shall have the earliest effective dates of the earliest time it is ascertainable that an increase in disability had occurred. Now bare in mind that my injuries are documented in my service records dating back as far as 1989 and continued through to this date with at least 4 wrist surgeries in service, X-ray evidence, listed pain, a medical board for the wrists and injuries recorded for my back with DJD and dextroscoliosis. 

Any suggestions or opinions would be greatly appreciated

 

KC

 

[broncovet]

The effective date is the LATER of the facts found, or date you applied.  This is also true for an increase BUT there is an increase exception.  (One that VA often overlooks, to the detriment of the Veteran.) . 

You would need to look at these exams to decide whether to appeal the effective date or not.  If you had an exam in 2016, where the doc opined your disability (or increase) happened in 2016, not 2011, that will be hard to overcome.  Sometimes the VA just uses the exam date, however, if the doc does not specify a date.  

This sounds like what happened, but I could not be sure, without reading your file.  

Think about it. Are you applying for a disability "that you predict will happen in the future?"  Unlikely.  You are applying for a disability you already have symptoms for.  Its a near impossibility for you to attend a c and p exam, fully healthy, and when you leave the exam room...poof, you have a disability.  The c and p examiner did not cause your disability, and you did not get your disability as a result of attending a c and p exam!!  Instead, you already were disabled when you went for the exam..probably long before...but this doc just "documented" your symptoms..it was not the starting date for your disability.  

Now, here is the regulation that is often overlooked which permits many vets an eed:

Quote

 

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

This is a bit complicated..."if received within one year of SUCH DATE?"   What date are they talking about?  I think the date they are referring to is the date you first applied..

In my case, I got an eed under this regulation..and I did not even know about the regulation.  I had a board decision where the BVA automatically applied this when I sought an EED.  Dont count on them figuring it out, tho.  Be proactive and ask for this eed.  

Source, and other regs for eed:

https://www.law.cornell.edu/uscode/text/38/5110

Edited January 30, 2019 by broncovet

[cham1968]

Thanks BRONCO VET! yea I've read through several that basically state the same or similar, which gives them a way out in my opinion. Lastly they stuck with the 5200 codes with limitation of motion. I was thinking they should have given the 10% EED of 2011 due to the fact that 5300 states Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group. Just thinking out loud, shouldn't they have applied this? 

 

thanks again 

[broncovet]

It sounds like an appeal is in order..yes, I recall that several 0 percent ratings combine to 10 percent, but that only happens when you dont have other ratings.  Effective dates are complex.