Retroactive Pay Question

[rk4435]

Basic timeline;

October 2018 Radiculapothy Reduced to 0% from 10%.  (I was too dumb to know to appeal)

April 2019 I did an intent to file but did not submit the claim. (Believe it or not I had a good reason to wait)

October 2019 completed intent to file for rating increase for the 0% rating.

November 2019 C&P completed and the examiner note says Incomplete Paralysis / Moderately Severe.

 

I understand that this should lead to an increase in the rating.  Would the effective date be the April intent to file, October filing, or exam date in November?  It will lead to an increase to the next payment level according to multiple calculators.

[broncovet]

Short answer:  We dont know.  

Your effective date is the later of the "facts found" or the date of claim with some exceptions.  I have no idea what date your doctor stated that "you have incomplete paralysis/moderately severe".  He could have made it the date of the exam, or he could have reviewed your records and noted you had those symptoms on xx date.  

You are going to have to wait for the envelope, then decide whether or not to appeal the effective date...right now its pure speculation.  It could be the ITF, but your doctor could have given the exam date as "facts found", and I dont know that.  

Since you know much more about your disabilities, date you filed, etc., you can read this to see if you qualify for any of the exceptions to the effective date rules.

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

[rk4435]

2 minutes ago, broncovet said:

Short answer:  We dont know.  

Your effective date is the later of the "facts found" or the date of claim with some exceptions.  I have no idea what date your doctor stated that "you have incomplete paralysis/moderately severe".  He could have made it the date of the exam, or he could have reviewed your records and noted you had those symptoms on xx date.  

You are going to have to wait for the envelope, then decide whether or not to appeal the effective date...right now its pure speculation.  It could be the ITF, but your doctor could have given the exam date as "facts found", and I dont know that.  

Since you know much more about your disabilities, date you filed, etc., you can read this to see if you qualify for any of the exceptions to the effective date rules.

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

Thanks Broncovet.  I'm guessing the date of the exam would be the "date" it was proven or I may be able to appeal it back to the date on the EMG test that proves it. 

Nonetheless I learned an important lesson the hard way.  The rating was reduced during a back exam where no questions were asked about my leg.  The VSO I had at the time kept saying they would check and call me back.  Needless to say that VSO no longer gets donations from me.

[Vync]

I have been through something similar to this. Keep in mind the way proposals to reduce work. They have multiple stages:

1. VA sends you a letter proposing to reduce your rating. This could be due to a recent C&P exam or the time limit expiring on a rating they deemed temporary. They will indicate that you have X days (can't recall, may be 30 or 60 days) to respond with evidence proving the rating should be continued. If you do not respond, they will move forward with the reduction. If you respond with evidence, they will review it.

2a. If they moved forward with the reduction, you'll get a decision letter explaining why and the usual appeal timeframe forms.

2b. If you submitted evidence, the VA will review it and/or request a new C&P exam. When that's done, they send you a decision letter explaining why and the usual appeal timeframe forms.

3. At this point, if you do nothing they consider that as being you agreeing with their findings and the decision will become final when the appeal window expires. However, if you appeal before the appeal window expires, your claim would still be considered alive.

That brings us to the next question. Do you still have all the forms that came with the in October 2018 rating decision? If you do, check those first. One of them indicates your rights to appeal their decision and the duration of your appeal window. Normally it is one year for regular appeals with the VARO, but it could differ for a reduction. It is important that you do not throw away the pages that come with your decision letters.

In April 2019, you submitted an Intent to File. That gives you a one year window to collect evidence and formally open your claim.

In November 2019, the C&P exam found incomplete/moderate severity.

Now for the tricky part. If your October 2018 claim had a one year appeal window, technically your claim may still be open. 

In April 2019, the VA began using the new appeals process. They are sticklers for filing the proper form depending on your situation. Many of us learned this the hard way. However, I could be wrong, but for claims which were not finalized by April 2019, your appeal window may have still been open from the October 2018 decision. Probably the best way to find out is to call the 1-800 number or check with a VSO to see what they say. 

Why is it important if the October 2018 decision was still appealable? Effective dates. This goes to what Broncovet said and their reasoning for reducing the rating last year. If they reduced it because evidence showed you no longer met the criteria for the 10% rating, the reduction would be justified. However, if they reduced it because you missed a C&P exam, you can look in medical records from the prior 12 months to see if you have evidence to help justify the continued rating. The decision letters from last year and this year hold the information you need.

Here's something else you need to know. Once you are SC for a disability, even if you are at 0%, all you need to do is provide evidence showing you meet the criteria for a higher rating tier. This evidence can be from the prior 12 months (cannot go back prior to the date you were SC). The VA may or may not send you for a C&P depending on the situation. If they grant the increase, the effective date of the increase would be the date you met the criteria for the higher rating.

I had a situation like this some years back. I was rated 30% for asthma and it was treated frequently with prednisone. I learned that if you got 3+ per year, that would warrant an increase to 60%. I filed the increase and won. The decision letter said it was a temporary increase because they expected me to improve. A year later, I got a proposal to reduce and sent in medical evidence proving the rating could be continued. Soon after, I got a decision letter reducing me back to 30% because they said the evidence did not show it warranted a continued rating of 60%. I filed a reconsideration along with the evidence and they still denied, so I filed a NOD and requested an in-person DRO review. A couple of years later, I met with the DRO and showed my evidence. Everything I sent in was present in the claims file. The DRO reviewed and said the VARO made a stupid decision. About five or six weeks later, a decision letter arrived which reversed the reduction, continued the 60% rating, and indicated how much retro I would get. Because I had been receiving the prednisone treatments for asthma for about six years total, they considered the rating stabilized and indicated it was not expected to improve.

Below is an article which can help you understand how increases work. Check my blog for other articles which might be beneficial.

 

[rk4435]

6 hours ago, Vync said:

I have been through something similar to this. Keep in mind the way proposals to reduce work. They have multiple stages:

1. VA sends you a letter proposing to reduce your rating. This could be due to a recent C&P exam or the time limit expiring on a rating they deemed temporary. They will indicate that you have X days (can't recall, may be 30 or 60 days) to respond with evidence proving the rating should be continued. If you do not respond, they will move forward with the reduction. If you respond with evidence, they will review it.

2a. If they moved forward with the reduction, you'll get a decision letter explaining why and the usual appeal timeframe forms.

2b. If you submitted evidence, the VA will review it and/or request a new C&P exam. When that's done, they send you a decision letter explaining why and the usual appeal timeframe forms.

3. At this point, if you do nothing they consider that as being you agreeing with their findings and the decision will become final when the appeal window expires. However, if you appeal before the appeal window expires, your claim would still be considered alive.

That brings us to the next question. Do you still have all the forms that came with the in October 2018 rating decision? If you do, check those first. One of them indicates your rights to appeal their decision and the duration of your appeal window. Normally it is one year for regular appeals with the VARO, but it could differ for a reduction. It is important that you do not throw away the pages that come with your decision letters.

In April 2019, you submitted an Intent to File. That gives you a one year window to collect evidence and formally open your claim.

In November 2019, the C&P exam found incomplete/moderate severity.

Now for the tricky part. If your October 2018 claim had a one year appeal window, technically your claim may still be open. 

In April 2019, the VA began using the new appeals process. They are sticklers for filing the proper form depending on your situation. Many of us learned this the hard way. However, I could be wrong, but for claims which were not finalized by April 2019, your appeal window may have still been open from the October 2018 decision. Probably the best way to find out is to call the 1-800 number or check with a VSO to see what they say. 

Why is it important if the October 2018 decision was still appealable? Effective dates. This goes to what Broncovet said and their reasoning for reducing the rating last year. If they reduced it because evidence showed you no longer met the criteria for the 10% rating, the reduction would be justified. However, if they reduced it because you missed a C&P exam, you can look in medical records from the prior 12 months to see if you have evidence to help justify the continued rating. The decision letters from last year and this year hold the information you need.

Here's something else you need to know. Once you are SC for a disability, even if you are at 0%, all you need to do is provide evidence showing you meet the criteria for a higher rating tier. This evidence can be from the prior 12 months (cannot go back prior to the date you were SC). The VA may or may not send you for a C&P depending on the situation. If they grant the increase, the effective date of the increase would be the date you met the criteria for the higher rating.

I had a situation like this some years back. I was rated 30% for asthma and it was treated frequently with prednisone. I learned that if you got 3+ per year, that would warrant an increase to 60%. I filed the increase and won. The decision letter said it was a temporary increase because they expected me to improve. A year later, I got a proposal to reduce and sent in medical evidence proving the rating could be continued. Soon after, I got a decision letter reducing me back to 30% because they said the evidence did not show it warranted a continued rating of 60%. I filed a reconsideration along with the evidence and they still denied, so I filed a NOD and requested an in-person DRO review. A couple of years later, I met with the DRO and showed my evidence. Everything I sent in was present in the claims file. The DRO reviewed and said the VARO made a stupid decision. About five or six weeks later, a decision letter arrived which reversed the reduction, continued the 60% rating, and indicated how much retro I would get. Because I had been receiving the prednisone treatments for asthma for about six years total, they considered the rating stabilized and indicated it was not expected to improve.

Below is an article which can help you understand how increases work. Check my blog for other articles which might be beneficial.

 

I found the details Vync, I scan and keep everything from the VA.

Rating Decision is 10/24/2018
Evaluation of radiculapothy of the left lower extremity, which is currently evaluated 10 percent disabling is decreased to 0 percent effective August 28, 2018.

I did not keep any additional pages,  so I do not have any of the appeal info.  There were additional forms enclosed.  That may change things though since the reduction was August 18.  I remember posting in this forum about it, but I probably did not word it very well.  Once I realized that the very large VSO was not going to communicate or advise me I was beyond the 30 days.  Needless to say I switched organizations. 

I also have respiratory issues and I believe there could possibly be some changes to the way that's rated in the next couple of years.  The National Academy is conducting an exposure study. 

[Vync]

On 11/27/2019 at 8:09 PM, rk4435 said:

Rating Decision is 10/24/2018
Evaluation of radiculapothy of the left lower extremity, which is currently evaluated 10 percent disabling is decreased to 0 percent effective August 28, 2018.

I understand as I have had similar experiences myself. Regarding the rating decision, the part you quoted just explains the action they took, not their reason why they took it. That part would be found under "reasons and bases" in the decision letter.

[rk4435]

12 hours ago, Vync said:

I understand as I have had similar experiences myself. Regarding the rating decision, the part you quoted just explains the action they took, not their reason why they took it. That part would be found under "reasons and bases" in the decision letter.

I did not find a "Reasons and Basis" heading in the letter.  It simply stated that the condition had improved. 

Nonetheless, today it went from a completion date of late January 2020 to a completion date next week as it moved into the Preparation for Notification stage today.  I guess I'll have answers soon enough.  I come back and post what they did with the effective date.