Effective Date After Finding Old Military Records

[Dash 1B]

Hello fellow vets! I was Airborne throughout my time in the Army. I foolishly drove on through the pain and rarely went to sick call so I had very little information in my medical records. I filed for both knees in 2010 and was denied and CLOSED. After the passing of my grandmother, we were going through some boxes and I found some old army papers. In them was my Jump Log with all my military jumps recorded. I actually took that to my doctor and he wrote a nexus letter for me. I filed the claim and this is what the decision letter stated:

Left Knee 40% limitation of extension

                  30% instability

                  20% subluxation

 

Right knee 40% " "

                     30% " "

                      20% " "

 

The effective date was the date I submitted the claim (at the end of 2019).  I put in a Notice Of Disagreement after I found out about CFR 38. 3.156(c) that states if the VA receives military documents that existed and had not been associated with the claim at the time the VA made a decision, then the VA will reconsider that claim. Does anyone have experience with this and can you tell me if I did the right thing? I also want to know how they would compensate for this if I were to win the NOD. I am at 70% now. Thank you!

 

 

 

 

 

 

 

[broncovet]

Great work!!!

    You should get the effective date "back to the date you first filed" BUT limited by the "facts found".  

Allow me an example:

    (This may or may not apply to YOU).  

     You apply in 2010, and get denied.  You find your service records in 2019 and get awarded (for simplicity, lets say 50 percent) back to 2019.  

Well, you COULD get a 2010 effective date  "but only if" in 2010 your knee was in as bad of shape as it was in 2019.  In other words if the "facts found" support a 2010 effective date.  

    To determine the facts found, you would need to do a review of your records, I have no idea if your knees were the same in 2010 and 2019, they could have gotten worse over time.  Possible is a "fenderson" staged rating.  

     A Fenderson "staged rating" could apply if, say in 2010 you were diagnosed with arthritis of the knees, in 2015 they got worse and you had to wear a brace, and in 2019, they got worse yet and you had to have a total knee replacement.  This could mean you had differing percentages over differing time periods, relative to your symptoms and treatments.  (the facts found).  

[Dash 1B]

Thank you for your response. I have always had arthritis and instability. The limited movement has gotten worse over time. I really appreciate your insight.

[Guest]

On 2/6/2020 at 8:26 PM, broncovet said:

Great work!!!

    You should get the effective date "back to the date you first filed" BUT limited by the "facts found".  

Allow me an example:

    (This may or may not apply to YOU).  

     You apply in 2010, and get denied.  You find your service records in 2019 and get awarded (for simplicity, lets say 50 percent) back to 2019.  

Well, you COULD get a 2010 effective date  "but only if" in 2010 your knee was in as bad of shape as it was in 2019.  In other words if the "facts found" support a 2010 effective date.  

    To determine the facts found, you would need to do a review of your records, I have no idea if your knees were the same in 2010 and 2019, they could have gotten worse over time.  Possible is a "fenderson" staged rating.  

     A Fenderson "staged rating" could apply if, say in 2010 you were diagnosed with arthritis of the knees, in 2015 they got worse and you had to wear a brace, and in 2019, they got worse yet and you had to have a total knee replacement.  This could mean you had differing percentages over differing time periods, relative to your symptoms and treatments.  (the facts found).  

Great advice, The key is what your medical evidence proved and what the rating criteria was back in 2010 and over the last few years.  It would be pure speculation on our part to say what your percentage would/could be.  Keep in mind that stage ratings would have to coincide with your overall combined ratings over those years. In other words, if VA decides to grant an EED for stage rating, this new rating will have to be re adjudicated based on the percentages plus the yearly increases. It would/could change your overall combined rating over those years even if VA starts with zero (0%).  That boils down to what VA owes you, minus what VA already paid you and you get the difference in back/retro pay.  Your new overall combined rating would be unknown until that decision is made.

[Dash 1B]

You all are awesome! Thank you so much for any advice! Cannot tell you how much I appreciate it!

[El Train]

Similar situation as you.  Except mine goes back to 1993.  Got denied because no military medical records could be found.  Found the military medical records and got approved at 80% in 2018 for the same claim in 93.  Have a lawyer take my case for back pay to 93.  I'll let you know how it goes.  

[Dash 1B]

I really hope things work out for you!