ptsd PTSD EED 1981 and question

[Berta]

I am posting this here to get some opinions on the potential re opened claim that a vet just posted about in the CUE forum.

I advised him to re open the claim they denied,with N & M ,  and also to file CUE on the older denial....but maybe 3.156 would be better.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files5/1639575.txt

In part:

 

"FINDINGS OF FACT

1. The Veteran filed his initial claim for service connection for PTSD on January 21, 1981.  The claim was denied in June 1981 and March 1982.

2. In July 2008, the Veteran submitted service records, specifically unit records, which were associated with the claims folder for the first time.  There was sufficient information in the record at the time of the prior rating decision for VA to have identified and obtained these records.  

3. In an October 2009 rating decision, the Veteran was granted service connection for PTSD, effective April 6, 2001.  This decision was based in part upon the stressor information contained in the service records submitted in July 2008."


CONCLUSION OF LAW

The criteria for an effective date of January 21, 1981 for the award of service connection for PTSD have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.159, 3.156, 3.400 (2015).

"Here, the receipt of the service department records and the RO's subsequent grant of service connection based upon these records trigger the VA's duty to reconsider the rating decision that initially denied service connection for PTSD.  The Veteran has had PTSD throughout the course of this claim.  The Veteran provided sufficient information for VA to identify and obtain the records prior to rating decision initially denying his claim.  The grant of service connection for PTSD is based in part upon the details of stressors contained in these relevant records.

An earlier effective date of January 21, 1981 is warranted for the grant of service connection for PTSD.  38 C.F.R. §§ 3.156(c), 3.400."

 

[broncovet]

Attornies get paid in 2 ways:

1.  From The Vet, as a percentage of retro payments.  

2.  From EAJA.  Yes, when there is a remand (especially JMR), the attorney can petition for attorney fees to the court.  This applies to CAVC remands.  

 

     The attorney can not collect, from the Veteran and also collect from EAJA, except to the extent that EAJA fees did not cover the client fee agreement fees.    So, if the EAJA pays fees, any amount of the EAJA fees will be deducted if/when the Veteran finally gets his retro.  

    I gave an example.   Veteran "Joe" hires an attorney for the cavc and signs a 20 % fee agreement.  

CAVC issues a JMR or remand, and attorney petitions the court for 6000 in attorney fees.   Upon remand, the BVA awards the benefit requested with a retro of 40,000.   Now, multiply 40,000 times 20%, that results in 8000 attorney fees.  6000 have been paid by eaja, so the Vet in this case pays 2000.  

In this example, if the vet gets 30,000 in retro, or less, then the 20% will be 6000.  $6000 was paid by eaja, so the Vet pays no attorney fees.  It would be paid entirely by eaja.  

 

 If the Vet appeals to the CAVC hires an attorney, and the attorney gets a remand, the EAJA usually awards attorney fees.  

    Then, if the remand results in a BVA or RO award, the attorney can collect his percentage of the retro, minus the EAJA fees already paid by EAJA.  

Edited December 16, 2016 by broncovet