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hypertension Up Coming Dro Hearing
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Question
Ricky
As I prepare for my upcoming hearing which should be in Apr 05 according to IRIS I would just like for someone to give me a quick sanity check on the reason for my argument of EED on a Back Issue:
2002: File claim for back strain.
Feb 2003 SOC issued: Disability SC'ed at 0 % effective 2002.
Feb 2004 - Being the dumb butt that I am I failed to timely file VA 9 (mixed up the one year requirement for a NOD with the 60 day requirement to perfect appeal). So I filed the VA For 9 at this time.
July 2004 - VA sent me a letter saying hey dummy, sorry but the VA 9 was not filed in a timely manner. However, being the good guys that we are, we will use your VA form 9 dated 17 Feburary 2004 as a reopened claim it you want us to.
August 2004 - Sent VA a letter told them that yes I wanted the VA 9 to be used as my request to reopen the claim.
August 2004 -May 2005 - received those stupid "we are working on your claim letters"
May 2005 - Had C&P for increase in rating for hypertension and back strain.
July 2005 - Received strange rating letter. 0% for back strain continued with an effective date of Feb 2004 ( 0% had already been awarded in 2002 so I don't know how or why they changed it).
Aug 2005 Filed NOD
27 January 2006 SOC received - 0% is continued with an effective date of 31 January 2005?????? (Once again they continued the rating but changed the effective date)
30 January 2006 Blue rating form received - It stated that due to a different interpertation of the evidence the disability rating is increased to 10% with an effective date of JANUARY 31 2005????? Now I am really confused. Do I perfect the appeal per the SOC or do I NOD this rating? Well I did both. In Feb 06 I perfected my appeal and included the back rating percentage and the effective date.
In August 2006, after consuming much rum due to the confusion caused by the floating effective date, 0% continued by the SOC and the 10 percent awarded I filed a NOD to their 27 Jan 06 rating. Even though, as stated above, I had already perfected my appeal and included the back issue on the VA 9, I could see the VA just dropping the issue cause the regulation states that I must first file a NOD upon receipt of a rating decision to start the appeal. Hell I don't know casue by now they have me totatly confused. My NOD consisted of (1) based upon evidence (to include the May 2005 C&P) the disability met the requirement for a 20% rating (2) The EED should have been Feb 2004, the date of the reopening of the claim by VA.
Well now they have decided to give me the DRO hearing that I requested. I wanted the hearing cause I do not feel this cluster f#$%^ can be straightened out with only the written word. So at my hearing my arguments will be:
1- increasing the percentage to 20 percent. I will focus on the fact that the C&P in May 05 provides that forward flexion is limited to 45 degrees. The regulations provides disability ratings, as of 2002, for the back that are firm and in black and white. In general it states that if forward flexion is XXX the the rating is YYY. No if's and buts about it. I do not see any need for other IMO's on this one for the C&P verifies the forward flexion. I guess that I could additional IMO's that provide the forward flexion is limited to 45 degrees but 45 degrees is 45 degrees no matter what doctor says it. Now if it was a question of I claimed a greater amount of limitation of motion then I could see getting an IMO but this is not the case. I simply want them to use the evidence their doctor provided.
2 - The EED issue is and will be a ball of confusion to unravel. 0 percent was effective 2002. They officially reopened the claim in Feb 2004. Since the original filing they changed the effective dat twice without any ryhme or reason. Upon increasing the rating they once again reset the effective date to the date the rating decision was issued. Title 38 and CFR 38 provides that the effective date is the date the disability began and is normally the date of receipt of the claim (my interpertation). Its pretty plain to me....Claim was officially reopened effective Feb 2004, no dates were missed, therefore, the Effective date is to be set at Feb 2004. My plan is to present the prevailing law and regulations, and walk the idiot through the time line. Any additional ideals from you guys will be appreciated.
Sorry for the long post.
Edited by RickyLink to comment
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