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Jeffrey Smith

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About Jeffrey Smith

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    E-3 Seaman

Previous Fields

  • Service Connected Disability
    100%
  • Branch of Service
    USA
  1. Ok, since I don't seem to be getting definitive answers to the questions I have posed, let me try asking the 2nd question differently. VA regulation § 3.114(a) provides (in part): (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request." Since I filed my claim on 2/16/2016 (well more than a year after the 1996 VA law that recognized Prostate Cancer has a presumptive association with Agent Orange), it seems that my retroactive pay should be for 1 year prior to the 2/16/2016 date of my claim. Berta has copied and pasted VA case law that she says supports her conclusion that the answer to this is "No". However, I can't find the answer in what she posts as to why my claim isn't qualified, and she seems unwilling to be more specific. Chuck75 - responded that: "benefits may be authorized ", not will be authorized! It's kinda like 54/40 or fight! " Chuck, I take your point, but I am trying to find out what makes a claim such as mine fall in the authorized 1 year retro, or alternatively, what makes it unauthorized for same. So, again, can anyone tell me the answer to that question here? Also, I haven't had a definitive answer to my 1st question as to whether I was shorted a month in the initial retro payment. I know I can pursue this by filing appeals with the VA but I don't want to waste my time or theirs if it's not justified. I'm pretty sure that I am not the first one to confront these issues so I was hoping to get guidance from those who have been down this road before and could provide links to governing laws. I'm not trying to get retro pay I'm not entitled to, but I don't want to leave money on the table either. Thanks for any assistance.
  2. Sorry for my tardy response, but I have been away from my computer. Gastone Yes, I do realize the 100% is not permanent. For the present, my VA doctor has recommended "watchful waiting" as the prostate cancer is presently presenting as "slow growth" & will monitor it via PSA tests and/or biopsies. From my research, this is an acceptable method of "active treatment" so the re-evaluation shouldn't be triggered until this situation changes. Respecting your comment: "If you think your due an EED, have your VSO-Rep File a Official Review for CUE, request." - I am not sure if I am due this or not ... which is why I came to this forum to inquire. Tbird Thanks for the links but I think they are referencing mostly more complicated situations than mine as I have only a single rating by the VA and I'm just trying to find out if: A) I was shorted a month on the retro pay; and B) whether I was entitled to the one year retro pay mentioned in the the links I quoted (and bolded) in my 2nd post. I still don't know the answers to those questions - see below for details. Buck52 Respecting your following comments: "they are stating your effective date the date you filed looks to me like your not going to get retro because the start date for comp is the beginning of the next month. so you should get a 100% payment with dependents on 3/1/16" Well, as I stated in my original post: The reason I asked that question was because of the wording of the VA's award letter to me, also quoted in my original post: "YOUR NOT GOING TO GET 100% BACK FROM 1968/69 if thats what you think?" No, I didn't expect that "you may have an argument about the EED as to when your Dr first diagnose you or when the A.O. Cancer first arose but you need medical evidence to prove it." Well, the VA's Urology department has been monitoring my rising PSA levels for over a year, which led them to do the prostate biopsy which came back positive for cancer. And that's what led me to my 2nd (clarified) question, repeated below: Berta Respecting your comments: I, too, felt I supported my questions with both quotes AND links of the VA case law I was referring to, as well as the VA Award letter. In my 1st post, I quoted from the wrong section of the law, but corrected that in my 2nd post. So, we both are providing VA case law, I explain my reasoning as to why I think the 1 year retro might apply to me, and you just give me this conclusion: ... without telling me WHY the answer is "no". And when I responded: ... that's when you responded with the quote above where you said you had already posted the VA case law twice and from the subsequent conversation you and Buck52 had about how "frustrating" it was to deal with people like me, apparently thought I could not read &/or comprehend (for the record, I made nearly straight A's in college while both working full-time & going to school full-time, was a CPA and a hospital chief financial officer; as such, my reading/comprehension skills should not be an issue and your comments here were pretty insulting to me). So, you can copy/paste VA case law but you can't tell me what part of the law disqualifies me or what part of the law I quoted was wrong for the situation I presented? Also, for the record, I indicated in my original post ... so your insinuation that I hadn't done my own research and apparently expected you to do it for me is off base. And to Buck52's suggestion that all of my questions should be answered by the pinned responses at the top of the web page, I had reviewed a couple of the likely topics and still had these questions. If anyone wants to refer me to a linked document or case law & quote me the relevant portion of same that provides the definitive answers I'm seeking, I'd be grateful.
  3. Hi Berta, With reference to your conclusion: "The answer is no", can you advise why I don't qualify? Respecting: "You sure might be correct on the missing month of retro but others will chime in on that" ... is there a way to bring this to the attention of others (I know sometimes people don't join an ongoing conversation if they see one of their Experts is already involved in the conversation ...) ? Thanks, Jeff .
  4. Hi Berta, To your question: " Did you file a formal AO prostate Cancer claim within the year the regulation became law?" ... the answer is no. As indicated in my initial post: " I was diagnosed with Prostate Cancer in early February 2016, filed a claim with the VA on February 16, 2016 " (well after the effective November 7, 1996 date of the liberalizing law). So, I don't think the other info you quoted applies to me ... So, I'm still hoping to find answers to the 2 questions posed in my initial post (but, again, hopefully better referenced in my 2nd post) ... .
  5. Thanks for posting, Berta. Not sure what that M21 link refers to ... can you clarify? My bad for quoting the wrong law. Searching Google for: VA "Disability Compensation" "Effective date of award" "Agent Orange" "prostate cancer" I find the 1st link refers to VA case law at: http://www.va.gov/vetapp08/files5/0836040.txt which provides: "As the veteran cannot be deemed a Nehmer class member, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4)." Searching Google for "38 C.F.R. §§ 3.114" which (from above) appears to be the correct law, the 3rd link is: http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1967 which provides the same language as that applicable to the " Vets with AO from Korea and also children of Vietnam Vets" quoted above, to wit: "Additionally, VA regulation § 3.114(a) provides: (a) Effective date of award. Where pension, compensation, [or DIC], ... is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, [or DIC], ... is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request." So, again, I may be misunderstanding here, but I still have the same two questions as in my initial post (although hopefully better referenced in this latter post). Again, I appreciate any help here.
  6. Hi all, I have two questions: A) I was diagnosed with Prostate Cancer in early February 2016, filed a claim with the VA on February 16, 2016 and received the VA's 5/17/2016 notice of Original Award of 100% disability rating due to Agent Orange exposure in Vietnam (1968-1969). I've done quite a bit of research (including here on hadit.com) trying to understand the VA's back pay provisions to make sure I'm being properly compensated but most of what I've found seems to be a lot more complicated than what I think is my pretty simple issue. The VA's letter itself is a little confusing to me - excerpts follow: "Effective Date: 2/16/2016" "Payment Start Date: 3/1/2016" "Generally, payments begin the first day of the month following the effective date. When applicable, a retroactive payment, minus any withholdings, will be issued. Thereafter, payment will be made at the beginning of each month for the prior month. For example, benefits due for May are paid on or about June 1." I received payment for 2 months retroactive around 5/17/2016 and payment on June 1 (for May 2016). But it seems to me that if my "Payment Start Date" was 3/1/2016 (presumably for February), I should have had 3 months of retroactive pay (not 2), for 3/1, 4/1 & 5/1 before normal monthly payments began on June 1. Am I correct here or am I misunderstanding something? B) Maybe I'm looking in the wrong places, but I came across the following information from the " §3.114 Change of law or Department of Veterans Affairs issue", (a) Effective date of award that provides: " (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))" (this info was found at http://www.benefits.va.gov/WARMS/docs/regs/38cfr/bookb/part3/s3_114.doc which I was referred to from this link: http://www.veteranprograms.com/id1757.html ("Section 4. Other Claims"). Since I filed the claim more than a year after the effective date that the law recognizes prostate cancer as presumptive under the VA's Disability rules, should my retroactive pay be for 1 year prior to the 2/16/2016 date of my claim? Thanks for any help anyone can provide - you all are providing a great service! Jeff Smith
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