Awarded rating for DDD and Radiculopathy but EED seems off

[Foxhound6]

So, I had an HLR initiated awhile back. There was a DTA and I was sent to new exam on 3/23. The rating came in today on Ebenefits (I know, ickk, waiting on BBE). EED shows 2018 on my two awards for DDD in lumbar and radiculopathy on left side. Problem is, the HLR decision received explaining the DTA error that gave me the new exam stated that the condition would be presumptive to 2011. I feel like maybe the person rating did not quite see that part of the claim and went with my original intent to file date? I notified my attorney of it, maybe they can see it in system. However, with COVID they have been having a lot of......employee turnover at my attorney firm, so it has been more difficult to reach them timely than normal. Just trying to see if I misread something or not. Below is a link to the timeline I have been keeping of this claim as well as the HLR DTA error decision from Nov 2020. Thanks

 

[broncovet]

After you get the envelope, you can decide whether or not to appeal the effective date.  

As always, your effective date should be "the later of" your date of claim, or facts found (the date the doc said you became disabled).  

There are a number of exceptions to this general rule.  

Take each part seperately.  When did you file?  Did you file previously but were denied?  Or did you file previously and the VA blew you off and never adjtucated your claim?

 

When did your doc say you were disabled?  Did you have a c and p exam?  Did you magically "become disabled" at the doc's exam?  The doc should have given an onset date as to when your syptoms started, and they often dont do that, so the VA assumes you got disabled at the c and p exam.  That is almost never right.  You may need an IMO/IME to review your file an opine a date "when your sypmptoms first appeared".

 

Some common exceptions to the effective date general rule, above:

1. Did you exit the service within a year?  You should get the effective date the day after exit from service.

2.  Did you submit new evidence?  (38 cfr 3.156)?

3.  Was it a claim for increase?

4.  Did this involve a presumptive condition, such as Nehmer?

 5.  Did the laws change? 

     All of the above can affect your effective date.  

Read more, here:  https://www.law.cornell.edu/uscode/text/38/5110

[Foxhound6]

4 minutes ago, broncovet said:

After you get the envelope, you can decide whether or not to appeal the effective date.  

As always, your effective date should be "the later of" your date of claim, or facts found (the date the doc said you became disabled).  

There are a number of exceptions to this general rule.  

Take each part seperately.  When did you file?  Did you file previously but were denied?  Or did you file previously and the VA blew you off and never adjtucated your claim?

 

When did your doc say you were disabled?  Did you have a c and p exam?  Did you magically "become disabled" at the doc's exam?  The doc should have given an onset date as to when your syptoms started, and they often dont do that, so the VA assumes you got disabled at the c and p exam.  That is almost never right.  You may need an IMO/IME to review your file an opine a date "when your sypmptoms first appeared".

 

Some common exceptions to the effective date general rule, above:

1. Did you exit the service within a year?  You should get the effective date the day after exit from service. - This is what I feel is meant. In the letter the reviewer stated "The evidence shows that a qualifying event, injury, or disease had its onset during your service. Multiple lay statements were submitted on OCT 16 2019 as evidence supporting your claim" It goes on to list the diagnoses of the items. Further down it states "The claimed disability is a chronic disease which may be presumptively linked to your military service. Arthritis is a presumptive condition under 38 CFR 3.309a. Your claimed issue became manifest to a degree of 10 percent or more following service, based on VA examination dated DEC 9 2019. You have sufficient service to meet the minimum requirements for presumptive service connection."

2.  Did you submit new evidence?  (38 cfr 3.156)?

3.  Was it a claim for increase?

4.  Did this involve a presumptive condition, such as Nehmer?

 5.  Did the laws change? 

     All of the above can affect your effective date.  

Read more, here:  https://www.law.cornell.edu/uscode/text/38/5110

 

[broncovet]

Correction:  Did you FILE A CLAIM within a year of exit from service?  

The regulations states:

Quote

 

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

 

[Foxhound6]

14 minutes ago, broncovet said:

Correction:  Did you FILE A CLAIM within a year of exit from service?  

The regulations states:

 

I did not. I complained of back pain then but didnt file anything as i didnt know jack about it. That and the person seeing me back then, whoever it was, told me “its probably because of your knee issue”. And they left it at that

Edited March 30, 2021 by Foxhound6

[Foxhound6]

I ran into this under 38 CFR 3.307 - This is what I believe the HLR reviewer was referring to. I have lay statements, CP exam (from 2019 with one of the Va examiners) and continuity that can show the 10% or higher rating back within the one year window. Have a look, perhaps I am interpreting  this wrong?

 

(c) Prohibition of certain presumptions. No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.

Edited April 18, 2021 by Foxhound6

[broncovet]

Yes, but, since this is a claim for increase, it should go back up to a year earlier.  This explains it: (well sort of):

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.

Source:

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