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Was I Shorted On My Backpay/effective Date?


jmlo
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I was recently awarded p/t but have not seen anything yet. I went back to my award to see if I could figure appx what I might receive and I noticed that my sc was granted for fibro on the date of my application (3/2006) rather than the date of onset (2/2005). Are they supposed to award from the diagnosis date or the date of my app for compensation/pension?

Thanks.

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Your date of application is the origin of date. They cannot use dates we say started or were diag by Dr, but the date you informed them and applied for disability. :rolleyes:

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Thank you. I will have to go back and check my applications - I have been fighting this fight since 1998 and I'm really tired. I don't want to have to fight anymore but also don't want the VA to get away with wearing down another vet!

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jmlo,

Check out:

http://ecfr.gpoaccess.gov/cgi/t/text/text-...171&idno=38

I feel there are several things for you to consider such as:

B) If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of §3.342(a) do not apply.

(o) Increases ( 38 U.S.C. 5110 ( a ) and 5110 ( b )( 2 ) , Pub. L. 94–71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 )—(1) General. Except as provided in paragraph (o)(2) of this section and §3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.

(p) Liberalizing laws and Department of Veterans Affairs issues. See §3.114.

(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(b)(1) of this chapter.

(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

Hope this helps a vet,

carlie

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Yes the date you filed the claim is usually the date they use for the retro-

only in some cases involving SSA awards -can they sometimes go back further-

(Or some AO claims-which fall under Nehmer Court order often have incredible EEDS.and retro)

I always use my husband as example-

filed for higher PTSD rating in 1992 (and TDIU)(he was 30%)

SSA awarded him total disability for PTSD in award date of 1991.

The VA in 1997 awarded me his posthumous retro for 100% P & T PTSD -using the SSA date of disability- it was also the last day he ever worked and was one year prior to his claim for higher PTSD rating.

They never mentioned TDIU at all in the award -stating he was 100% P & T for SC PTSD back to 1991.

Under the reg when he died-I was only eligible for one year accrued retro- then the regs changed during next 6 years and they had to pay me two years accrued retro- my present claim if awarded garners me the additional 100 % year under the Nehmer Court Order.

I think they gave you the right date but best to check the payments at the VA web site to see if they added it all wrong.Which isnt unusual.and make sure they accounted for your dependents.

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§ 3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date [b]entitlement arose, whichever is the later. ]If you have a diagnosis or a diagnosing teest result that caused your claim to be awarded, Then date entitlement arose. Whichever is later.

This may apply in your case. DID you receive an award for Fibro? Was it diagnosed in 2005?

You filed the claim in 06?

File a NOD on the effective date stating the VA failed to follow 38 cfr 3.400. Then state the criteria.

That is what I would do. I have did it in the past and won on 3 different occasions.

J

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