Reasons for BVA to Grant and Deny single issue?

[Confusedvet1]

Hello,

Years ago I filed a claim for a scar from surgery while in service. They granted the scar at 0% . I appealed it saying it was painful and should be rated at 10%. RO denied it so it went to the BVA who remanded it back to RO because the original exam wasn't proper and the VA didn't review records it had that were pertinent to claim. The BVA remand instructions were to review specific records and do a new exam.

I had a new exam and later received a letter from RO saying they granted me 10% but the effective date was the date of new exam. They said that is the first diagnosis of scar pain even though my records going back years show me complaining of pain which is why I suspect BVA told them to review those records. The RO decision letter stated the only used the new exam as evidence for their decision.

So it went back to the BVA and it seems they made a decision. I'm waiting on the letter but website said they granted my claim and also denied it? 

 

Any ideas on how this is possible?

 

I'm hoping it's a grant for earlier effective date and denial of an increase in excess of 10%? Anyone have any ideas on what they would grant and deny same claim?

[GBArmy]

Confusedvet1 It is what  the VA does. You have to wait to receive the decision letter. You can check VA.gov for recent payments and see if you got back pay. You can also check the "Letters" section and see if you are now rated 10%. But basically, we have to get the letter.

[broncovet]

Some of us Vet advocates dont want to speculate on "when ebenefits means when they say....", and Im one.  You will have to wait for the letter.  

However, its possible this could both be sort of granted and denied.  (sort of).  

They may have denied an effective date (back as early as you sought) but could have awarded an earlier effective date for a different date. 

At least 2 reasons this "could" happen:

1.  Remember, your effective date is the later of the "date of claim" or facts found (the date the doc said you were disabled).  We dont know "what" date you first reported to the doctor that your scar was "painfull".  It could have been before, during or after the date of your initial claim.  So, check when the doc said you reported a painful scar.  

2.  Often overlooked is the following regulation, which could render you an EED for up to one year:

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

     There could be other reasons for a different effective date.  If you still dispute the effective date, after you get the decision, you can appeal it to CAVC (if you appeal a board decision within 120 days).  Or, if a varo decision, you can appeal it to the BVA> 

[Confusedvet1]

Thanks all. I'll just have to wait. I read the guidelines for RO on scar pain and they aren't supposed to award it until the veteran says it hurts at exam. They say that is objective evidence even though examiner can't know for sure and goes by what veteran says. But if veteran complains not to examiner then it's subjective evidence which makes no sense. 

 

There are plenty of complaints of pain prior to me filing original claim so hopefully my assumption is right. 

The RO didn't even complete remand instructions specifically reviewing and considering evidence the judge told them to review. I base this on the letter that said what evidence they considered. 

So I guess I'm still hopeful that it's moot if they gave me earlier effective date.

 

Like you all have said, I guess I just have to wait and see. 

 

My effective date hasn't changed for the scar issue online but I'm assuming that would take weeks or months to happen anyways.

[Confusedvet1]

Interesting side note for others. According to VA policy if you call them and tell them you received the letter and have questions then they can talk about the decision letter with you. If you say you haven't received it yet then you have to wait 10 mailing days.

[broncovet]

That is interesting. 

 

[Confusedvet1]

Ok so I finally got my letter in the mail today. The judge denied in excess of 10% for scar which is what I expected and thought should happen and granted the issue that I should be entitled to an earlier effective date.

However they didn't give a specific effective date. He didn't remand it either and nothing on VA.gov is open for claims or appeals and effective date hasn't changed. 

 

Does that mean RO is working on new effective date or did they forget to do something and I need to talk to someone to make it happen?