This Veteran will attempt to go back and revisit his claim of 1978 which he filed within one year of when he left the military. The DRO decision of 2003 granting SC is unique in that VA granted his 1978 claim in spite of the fact that he never appealed that old decision. From a rating standpoint, it makes for interesting reading. The Fenderson v. West (1999) CAVC case made an important distinction between a claim for an initial rating and a claim for an increased rating. Read on

http://www.va.gov/vetapp08/Files1/0805499.txt

If this had been me, I would have filed with the CAVC. I have not seen this up there yet which is not to say the VET may never do so. When you are finally successful in your claim, you may ask for an effective date up to one year prior to your filing. This is covered by 38 CFR 3.400. If you filed in, say 1994, and lost-then refiled in 2007 and won, you can request a retroactive “staged rating” that encompasses the time in between. You got sicker, so it stands to reason there was a geometric progression in the symptoms of your disease. The trick is having documented evidence of the progression of the illness. If you never went back to the Doc. after 1994, and then go in in 2007 with raging jaundice, LFT’s off the map,prove your case and get the SC, they will grant the rating(and like this case, may go back to 77). But if you have no LFTs on record in between, then its tough luck,bubba. A true Fenderson Staged Rating would be a gradual increase in your % for the hep. from 94 to 07. Diagnostic Code(DC)7345 was in effect for all flavors of hep until 2001, when they started DC7354(Hep C). When you do get the SC, you only have one opportunity to exercise this right to Fenderson. If you accept your rating without an appeal, you have agreed with it. End of story and here’s your rating %. However, if you file a NOD after you get SC and say “Not so fast, homie. I want the Fenderson staged rating”. they will give it to you. Now, if you had that 94 filing, and they finally give the 07 SC, you could file an NOD asking for Fenderson back to 94. If you can corroborate your illness back to then, they may go back and rate from 94.They did it here but they screwed the VET by issuing a 0% from 77, which is the same as an empty lollypop stick. VA is famous for that. If they don’t, it’s time to file the Form 9 and send it up the ladder. Filing a NOD to protest an initial % rating is a whole lot different than filing a claim for an increase in compensation as this decision shows. Be careful what you agree to with these guys. Do not take VA’s advice on your claim. That would be like accepting the advice of the lawyer who represents that joker who rear ended you(“Excuse me,sir.Would you just sign this release of liability for me so we don’t have to pay you a Short Ton of $?” Not good. I always appeal now for more on everything to get it in front of them that I am not happy with the decision, the effective date, and the rating %. Do your homework on this stuff. You only get one shot at a disagreement with your decision.No appeal = thank you, sir and goodbye. An appeal does not require a lot of work. If you just appeal and don’t even put up a good defense(or no defense), it still represents an appeal and protects your right to revisit the denial any time in the future when you get deathly ill and have lots of time to tickle the keyboard. One thing I noticed in this decision that has recently been overruled is that a VET now can show by financial records that he has been harmed. Used to be just the medrecs, but the CAVC now says you can prove it w/ SSA records, too. Gentlemen, start your computers! Signed- Mr. Nod.