Back Prorated Disability Compensation

[baconguy]

In 2007, I was granted 10% disability for a severe leg injury sustained while on active duty as a reservist. In 2008, I did more active duty time and was told that I would not rate both disability compensation and my salary on active or reserve duty. I thus had it suspended. About two years ago, I discovered that I did in fact rate disability compensation while in a drilling reserve status and that the amount would be prorated based on the number of drills each month. Today I discovered that I have been paid only my disability compensation from the date I filed for resumption of the payments. My request for the back prorated payments, which I was told that I did not rate, was denied even though I do rate them. Does anyone know how best to approach appealing this? I couldn't find the answer anywhere on here and I appreciate the help.

[broncovet]

If you have a denial decision within a year, the procedure is to file a NOD.  Remember, tho, in your NOD avoid mentiontioning "what you were told", and instead, cite the regulation which states you get the benefits.  If you are not sure of said regulation, then try looking it up, or ask the person who "told" you it was so.  You can also try to see if you qualify under one of these exceptions:

5 U.S. Code § 5533 - Dual pay from more than one position; limitations; exceptions

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

• US Code
• Notes
• Authorities (CFR)

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(a)

Except as provided by subsections (b), (c), and (d) of this section, an individual is not entitled to receive basic pay from more than one position for more than an aggregate of 40 hours of work in one calendar week (Sunday through Saturday).

(b)

Except as otherwise provided by subsection (c) of this section, the Office of Personnel Management, subject to the supervision and control of the President, may prescribe regulations under which exceptions may be made to the restrictions in subsection (a) of this section when appropriate authority determines that the exceptions are warranted because personal services otherwise cannot be readily obtained.

(c)

(1)

Unless otherwise authorized by law and except as otherwise provided by paragraph (2) or (4) of this subsection, appropriated funds are not available for payment to an individual of pay from more than one position if the pay of one of the positions is paid by the Secretary of the Senate, the Chief Administrative Officer of the House of Representatives, or the Chief of the Capitol Police, or one of the positions is under the Office of the Architect of the Capitol, and if the aggregate gross pay from the positions exceeds $7,724 a year ($10,540, in the case of pay disbursed by the Secretary of the Senate).

(2)

Notwithstanding paragraph (1) of this subsection, appropriated funds are not available for payment to an individual of pay from more than one position, for each of which the pay is disbursed by the Chief Administrative Officer of the House of Representatives or the Chief of the Capitol Police, if the aggregate gross pay from those positions exceeds the maximum per annum gross rate of pay authorized to be paid to an employee out of the clerk hire allowance of a Member of the House.

(3)

For the purposes of this subsection, “gross pay” means the annual rate of pay (or equivalent thereof in the case of an individual paid on other than an annual basis) received by an individual.

(4)

Paragraph (1) of this subsection does not apply to pay on a when-actually-employed basis received from more than one consultant or expert position if the pay is not received for the same day.

(d)Subsection (a) of this section does not apply to—

(1)

pay on a when-actually-employed basis received from more than one consultant or expert position if the pay is not received for the same hours of the same day;

(2)

pay consisting of fees paid on other than a time basis;

(3)

pay received by a teacher of the public schools of the District of Columbia for employment in a position during the summer vacation period;

(4)

pay paid by the Tennessee Valley Authority to an employee performing part-time or intermittent work in addition to his normal duties when the Authority considers it to be in the interest of efficiency and economy;

(5)pay received by an individual holding a position—

(A)

the pay of which is paid by the Secretary of the Senate, the Chief Administrative Officer of the House of Representatives, or the Chief of the Capitol Police; or

(B)

under the Architect of the Capitol;

(6)

pay paid by the United States Coast Guard to an employee occupying a part-time position of lamplighter; and

(7)pay within the purview of any of the following statutes:

(A)

section 162 of title 2;

(B)

section 23(b) of title 13;

(C)

section 327 of title 15;

(D)

section 907 of title 20;

(E)

section 873 of title 33; or

(F)

section 631 or 631a of title 31, District of Columbia Code.

[(G)

Repealed. Pub. L. 96–70, title III, § 3302(e)(8), Sept. 27, 1979, 93 Stat. 498.]

INterestingly, apparently the VA suggests you do qualify under an exception, because they are currently paying you for both.  If the amount of money is large, you could consider seeking an attorney if denied at the BVA level.  

[broncovet]

Whenever I file a NOD, I try to refute the "reasons and bases" for decision.  If no reasons and bases is given, then you can appeal for that, and AT LEAST make the VA give you a reasons and bases.  

The "reasons and bases" is very important.  They normally cite regulations as to "why" they did something, and, if you dispute this interpretation of the regulation, then you can appeal on that bases.  Remember, the regulations support that if there is a benefit of the doubt, the tie goes to the veteran.  

If you can show they had a faulty "reason" for denying you, the logical course is to reverse and award benefits.  Sometimes, when the Veteran refutes a reason for a denial, the appeals remand, and VA simply crafts a new reason for denial, and you start all over.  This is where I am at now.  The VA said my IU was "moot", and I appealed and explained how it was not moot, because it could render an eed or SMC S, under Bradley vs Peake.  The BVA agreed with me that it was "not moot" and remanded it.  The RO then crafted another reason for denial, and I have to refute those.  

I dont think the VA should be able to hold up the Veteran crafting reason after reason for denial.  I think if they deny for reason "x", and the Veteran refutes that, then he should get his benefits because the VA is required to give a valid reasons and bases for denial.  If the VA lists "reason X" for denial, then that presupposes you otherwise qualify, or, those reasons would also be in the denial.  

[Buck52]

Great Infomation broncovet

 btw  How is your claims going with the Dallas Attorney?

You or her filed your NOD/For your correct EED when? this time around I mean?

Also if your Attorney wins this for you  will you get retro all the way back to when you first file 14 years ago?   (if so I may need to ask ya for a loan buddy?) ...   ...Nah I'm just kidding ya, I do hope and pray that you finally get what you got coming to ya.

Question, Do they pay retro on a NSC ? (Non service Connection)

[john999]

45 years ago I did not file a NOD because I did not know I could do that when I got my first low ball  rating from the VA.  Even though the VA ignored vital medical information in my claim that failure to

file the NOD cost me thousands of bucks.   Appeal everything!   The VA has a million tricks to blow you out of the water when you ask for retro if you did not file that simple NOD.