NOD for Effective Date

[LightningFan75]

I think I decided to file an NOD for my TDIU\PTSD effective dates but wanted to get some opinions before I open the can of worms.

I filed for PTSD 4/18 and my claim was placed in deferment without a C&P in 7/18.  When I called to inquire why I wasn't given an exam, they miraculously sent me an appointment for 12/18   The doctor denied my claim stating my MST trauma was due to a childhood incident, but my claim was never closed.  I wasn't sure how to approach not getting a denial, so after going to therapy for several more months, filed a supplemental claim for PTSD, which sent me to another C&P in 8/2019...this time a separate VA doctor didn't even listen to me and falsified 90% of the report, calling my test scores too high to taken reliably and made it a point to say I was exaggerating my symptoms.   As soon as I got the documents on MHV, I wrote a letter to impeach his exam.  Fast forward to 12/2019 I finally got an exam with a VES psychologist who went line by line with me, through each of my previous C&P exams and basically set the record straight on everything.  She was fantastic and took all the time needed to rebut the previous doctors.

The award later I received stated that I was granted 30% PTSD as of 9/19 due to my symptoms not warranting a higher rating and a 70% rating as of 12/19 (the date of my C&P, not my claim) stating that it was on this date that factual evidence was presented.

Separately, I filed for IU 1/19 when became unable to work due to my PTSD.  I was awarded IU as of 12/19 based solely on my 70% rating of PTSD.

I want to appeal the IU decision since I filed January of last year but since it's tied to my PTSD I need to appeal that date as well.  Considering my last exam was to rebut the previous 2 exams is it likely to get the PTSD effective date moved back and therefore allowing the IU date to move back?

My husband isn't convinced we should appeal at all.  He's afraid that an appeal for the effective might reverse my 100% P&T by having someone else review the case.  If an appeal is made solely for effective date is there a chance of my rating going down or does VBA only focus on the actual appeal?

I know i've asked a variation of this before but the thread was taken off topic and died.

Thanks for everyone's patience and opinions.

[ShrekTheTank]

Great job on keeping up the fight and finally beating them.  

Next the VA can do whatever they want to try and do.  I always go with telling the truth!  This way there is no way I wont' win in the end.  In the end could mean years from now.

From what you have said here it does sound like you have a case for EED.  They will always look at your entire case when you claim something.  It sounds solid as they made their decision on your UI and that should not move.  The VA has got to prove a lot of different things to lower you or take you off of UI.  

My wife was worried about this and it sort of happened to me in a way.  When my remand came down from the BVA I got 3 months of 100% scheduler, and my wife saw this and said why did you not stop fighting them.  What she did not realize is it was out of my control.  The RO combined two condition and they should not have, so now I am fighting at the CAVC to get this corrected.

In all reality I was not where you are at with UI.  I can work and so this does not apply to me, but the VA would have a hard road turning that back when you are asking to fix the EED.  Now they might denie you and you would need to keep fighting.  I am sure others with chime in, but I don't see a downside to asking for an earlier EED.

[broncovet]

Been there, done that.  On January 29, 2020, I was awarded an earlier effective date (eed)  with some similar circumstances to yours.  I should be getting a 5 figure retro check, based on the BVA award, in a few weeks or so.  

I suggest you pay close attention to how I did this, reiterating this is not a "theory" but something I have accomplished myself (won an EED) appeal.  

First, decided if you can represent yourself, go with a VSO, or hire an attorney.  

At the CAVC Dont even think of going there without an attorney.  This will come after a BVA denial.  Since you apparently havent had a BVA denial (yet), you CAN represent yourself or work through a VSO.  

Ok, so lets say you decide to work your appeal yourself up to the CAVC.  (Its fine to hand it over to an attorney now, but lets say you chose to do it yourself).  

The first thing you need to understand thoroughly:

     The VA "can" and does reduce ratings when a Veteran gets rated and "actually improves under ordinary conditions of life".  But its very difficult for them to do this, in part, they must comply with this:  https://www.law.cornell.edu/cfr/text/38/3.344

    Many Vets do not seek an EED or an increased rating because of "fear of reduction", a fear that is generally unfounded.  If you have tdiu, and managed to go back to work, well, yes, you will likely be reduced because you "actually improved" and are now working.  BUT THIS HAPPENS WHETHER OR NOT YOU APPLY FOR AN INCREASE OR EED.  

Its simply not true that VA can reduce you when you apply for an increase or tdiu.  Instead, they must follow the criteria, above.  

       "FEAR of REDUCTION" should have periods after it:  F.E.A.R.  (False expectations appearing real)  

        

        

      

[vetquest]

As Shrekthetank1 stated the VA can and will reduce you if they see fit.  They will do this sometimes in result to your submitting a new or upgraded claim but they usually get caught doing this.  The VA is not your friend.  They attempted to do reduce me me when I filed for IU. 

I am also requesting an EED on my SMC.  I am not sure under the AMA but I do know the VA cannot reduce you on an old style NOD.  

[Guest]

IMHO, the thing is no one can tell you to appeal or not, it is your call.  The problem I see is that in order to win your EED, you will have to prove you had met the IU prior to your first denial.  It will be awfully hard (not impossible) to prove and fight a bad C & P exam and you had two.  You must have medical evidence that show you had met that rating criteria.  Now for VA trying to reduce your current rating that is a bunch of fear tactics.  If you still meet the rating decision, VA might try to reduce but you can get that correct by an appeal.  I am not trying to be insensitive but that medical documentation is very important. VA will most likely try their best to say that you did not meet the IU rating until 2019.  Here is one of my post

I Knew I read it somewhere but it is better to let you read this than me telling you and then can't back it up.  VA tried to reduce this veteran's claim while still in appeal status.  It is called a "Mischaracterization of the Issue on Appeal."   See AB v. Brown, 6 Vet.App. 35, 39-40 (1993). There are rules and laws to reduce a rating. 

To hold otherwise would leave the door open for a possible "chilling effect" in the administrative appeal process, whereby veterans might be afraid to seek higher disability evaluations on appeal, for fear of having already awarded benefits reduced by the Board during the appellate process.  See, e.g., 38 C.F.R. § 3.2600(d) (2013) (except in cases of clear and unmistakable error (CUE), a decision review officer "may not revise [an AOJ] decision in a manner that is less advantageous to the claimant than the decision under review").  Such a result would be wholly 2 inconsistent with the non-adversarial claims system.  See Douglas v. Derwinski, 2 Vet.App. 435, 439 (1992) (noting the "basic principle of the VA claims process that claims will be processed and adjudicated in an informal, non-adversarial atmosphere"); see also Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) ("The VA disability compensation system is not meant to be a trap for the unwary . . ."). .

Edited February 6, 2020 by pete992