Late C&P exam

[Bryan Mosher]

The condensed version.  In March of 2016, I was diagnosed with stage 4 non Hodgkin's lymphoma.  I was in remission in October of 2016.  I submitted a claim, was denied, went through a higher level review, appealed in November of 2016 and then in June of 2023 was notified that I had won the appeal.  The VA instructions state that I am to receive 100% disability for a period of 2years at which time the VA will schedule a C&P exam based on the residuals of my cancer.

Due to the huge backlog of appeals my appeal took 7 years.  Now the VA has decided to schedule my C&P exam  5 years after the fact.  Here is my question, what rating should I receive for those 5 years?  The rating that the 5 year late C&P exam decides?  or the 100% while I waited for the C&P exam?

 

[brokensoldier244th]

It will be based on the symptoms as they were starting after the two years. 

[broncovet]

Good question...especially since there is no guarantee your symptoms remained the same for 2 years.  

The examiner could/should make an opinion as to whether or not your condition remained static for this period.  He is "supposed to review" your records, however, its not your responsibility to make sure VA does a re exam on time.  

The VA may render a decision based on this exam, and, if you dispute that decision, you can appeal it.  

Try to get a copy of the exam when you can, because that exam is critical to the outcome.  

The examiner "can/may" opine that "in his professional opinion" you have had the symptoms since ________.  (date). 

As an example, if the examiner opines that your symptoms are conisistent with a 0 percent, that is, asymptomatic, he needs to give a date as to when your symptoms were asymptomatic, and that is very hard to "guess" what your symptoms were 5 years ago.  Mostly, I think, the examiner will base his opinion "on your records" as well as your testimony.  

As always you want to be honest and not exaggerate your symptoms.  However, be sure and document the symptoms you have had this relevant period, by describing your symptoms during that period.  

Effective dates are the later of the "facts found" or the date you applied.  However, if this was for a temporary rating for SMC S, then the date you applied is rather irrelevant, because SMC is awarded based on your symptoms not on the date you apply.  Reason:  SMC is always inferred, so VA is supposed to grant SMC "when you meet the applicable criteria" even if you applied earlier or later.  

Edited June 14, 2023 by broncovet

[Rattler]

I am thinking that you have hit the 5 year rule and in another 3 will have hit the 10 year rule. This would make it hard for the to change your ratting? You may get lucky and the C & P will make you Total & Permanent. (T & P)