ptsd Retro Disability Compensation

[Jimmer]

I have a question, maybe you guys can enlightened me.  I have been battling the VA for years  In 2007 the finally awarded me 10% for my left eye, then it was raised to 60%  in 2015.  Then they said they had made a "CUE" on the rating of my eyes, and it should be at 80%.  I am also 50% PTSD, so I am 100% IU.  I filed for disability in 1978 for disability on my eyes, and was denied.  They claim they had no record of me filing at that time.  I want thru my entire claims file and military records page by page, and I found a letter dated August 1, 1978 in which they denied me disability compensation on my eyes, which were approved by a BVA in 2013, giving me retro pay from 2007.   An I entitled to retro pay from 1978?  They VA claims they had no knowledge of me filing in 1978, and I have found a VA document denying me a service corrected disability for the "exact" same condition that I was approved for in 2013.  If this is true, any idea on how I should proceed?   Thanks for all your help guys, it is really appreciated.

[broncovet]

Maybe.  Certainly the letter is great evidence, but this denial becomes final after a year of not filing a NOD. However, you can file a CUE anytime as long as you can find CUE in the 1978 denial.  Fortunately,  It did sound like VA admitted a CUE, but admitting one back to 1978 is not necessarily the same thing.  

I think your attorney  can argue the 2007 decison "subsumed" the 1978 one, but there is still a question of degree of disability back in 1978.  One possibility to resolve this is a Fenderson Staged rating, where you get x% form 1978 to 2007, and y percent from 2007 and after.   Did the 1978 letter give a reason for denial?

One big question is when did you get out of the service?  If the 1978 denial was within a year of service, then there is a special rule allowing an effective date back to the date of exit from service, and it sounds like you have proof you applied in that time frame.  

Count on VA to fight and squirm.  

My recommendation:  

1.  Get a copy of your Cfile.

2.  Hire a real good attorney to file a NOD and dispute the effective date.  

My opinion is you can skip the VSO, and here is why:   The chances a VSO gets you a 1978 effective date are, well,  you had better chances winning the lottery.   If one of those good attorneys accepts your case, then its very good and you have little to lose.    You may have to talk to 3 or 4 attorneys just to get one who will represent you.  I have not seen your file, but not filing a NOD to the 1978 claim will have to be overcame.    One possible way to overcome it is if the VA did not send you "notice" of your appeal rights, but I dont even know if they had to do that back then.    If the VA can not even document that they made a decision, how are they ever gonna document that they sent you a notice of your appeal rights.  

I can already see this is going to be complicated, and you will need a great attorney.  Unless there are special circustances, you probably wont see any money from your EED until at least year 2020.  

[Jimmer]

broncovet, Thanks for the advice.  I certainly will contact an attorney.   The information on the August 1, 1978 was referenced to a claim on the left eye in 2007, in which they indicated that it was denied  in 1978 because it was not  "service connected", as they were doing in 2007.   They never notified me at the time about the decision,  I had no change of address or nothing.  They denied again in 2007 until a BVA hearing stated otherwise.  When I filed a claim in 1978, I did it myself,  and when I didn't hear back, I thought that was that.  I didn't know ( my fault) about the different avenues, appeals  that  could do.  But they never sent me a letter of denial or any correspondence whatsoever.  I got out of the military  in 1969. 

[waccamawwild]

I definitely think it is worth pursuing with a good attorney!

[broncovet]

You can/should read Beraud, as this MAY apply to you:

 

LEONARD BERAUD, Claimant-Appellant, v. ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2014 U.S. App. LEXIS 17610
2013-7125

  In part:

 

CASE SUMMARYBecause the VA failed to determine whether evidence the claimant timely submitted after the decision on the 1985 claim was new and material under 38 C.F.R. � 3.156(b), that initial claim remained pending, despite the subsequent final decision. The court therefore reversed and remand for further proceedings.

 

 

OVERVIEW: HOLDINGS: [1]-The court reaffirmed that, under 38 C.F.R. � 3.156(b) (2014), the VA must provide a determination that is directly responsive to the new submission and that, until it does so, the claim at issue remains open; [2]-Because the VA failed to determine whether evidence the claimant timely submitted after the decision on the 1985 claim was new and material under � 3.156(b), that initial claim remained pending, despite the subsequent final decision.

 

 

OUTCOME: The court reversed and remanded for further proceedings.

 

[Jimmer]

Broncovet, Thanks for the information on the court case.  It really helps, and I am moving forward immediately on it.