Back Pay Calculation...

[veteran7796]

Good Morning To All,

This is my first post on this site. Although, I have looked at it many times over the years for advice and information and it has been more than helpful. So, thanks for all the help in advance.

Here is my timeline...

5/31/2011 -Initial Claim for Compensation (Cervical Neck)

10/12/2012 -Amended Claim to include GERD, Chronic Sinusitis

6/13/2013 -Awarded 30% for GERD (Effective Date of 10/12/2012) and awarded 0% SC for Neck and Sinusitis.

8/9/2013 -Filed FOIA/Privacy Act Request for service records to appeal the neck rating (This claim NEVER moved and is STILL sitting in CLAIM RECEIVED). So....to take action before the 1 year deadline I did the following:

4/13/2014 - Filed for Increase on 0% SC neck injury and 0% Sinusitis

6/2/2014 - C&P Exam for Neck

July 2014 - My claim was bouncing ALL over the place. ROE to PFD back to ROE back to PDA and now back to ROE....then it just stopped and has stopped for the last 2 weeks.

So, last week my VSO called me and said my claim for increase is still in Review of Evidence, however, notes on the case showed that Sinusitis was denied and will remain at 0%. Notes for the neck injury are as follows:

- Increase for neck injury granted and approved from 0% to 10% with an effective date of 5/31/2011

- "Clear and Unmistakeable Error". Initial C&P exam in 2012 showed rating should have been listed at 10% (which I already knew and is why I wanted to appeal the decision).

Under this scenario he said I should receive back pay at 10% from 5/31/2011 to October 2012 and then the difference between 30% and 40% from October 2012 to Present once they get it all signed. I do have custody of my three sons who live with me and no spouse so I get dependent rate.

Any idea how to calculate the back pay correctly before I get numbers in my head that arent remotely accurate? Hope I didnt confuse anyone.

[veteran7796]

... and before e-benefits updates too?

[NavyWife]

Just curious, did you tell VA there was a CUE or did they figure it out themselves?

Sounds like you have a really great VSO!

[john999]

The way the VA actually calculates your rating % is to take 10% of 70% healthy bod/mind which equals 7%. When added to 30% and rounded up you get 40%. If you have chronic pain or depression due to your neck injury that could be another claim. Are you looking down the road at some operation to do a fusion or something for the neck? I have a similar problem.

[veteran7796]

Well, the VA kind of painted me into a corner. See, my case fell into that bunch last year where the VA tried to eradicate the backlog. I literally went from Gathering Evidence to Complete in a week and honestly, my neck claim was my strongest evidence above ALL of them. So, when it was rated at 0% I knew this directly comflicted with what the C&P examiner said and what my records showed given that I had 2 neck injuries while on duty over my 12 year period. Each of which required rehab, pain meds and documented permanent damage.

So, with that said, I filed for a FOIA request to get my records so my doc could review and we could appeal the neck claim. After 9 months, the VA never responded to my FOIA records request. They didnt even process it at all. So, fearing I would lose my chance to appeal, I simply filed for an increase with a memo stating what the C&P examiner said which is that my neck injury was "More Likely Than Not" caused AND aggravated by military service and my range of mobility was in fact limited to less than 45 degrees (or something in that range). In addition, I stated that the VA's refusal or lack of completing my FOIA records request kinda screwed me out of a fighting chance to appeal my case because they left me with no chance to provide further valid evidence (which i could have provided for perhaps a higher rating).

So, when my claim started bouncing back and forth in July, I called my VSO and left a message. Well, he called me back and told me the VA found the error and already granted an increase to 10% and back dated my claim to the original filing date because it was in fact a CUE...this according to the notes on HIS end of the computer in the case file. I even asked him if they could at this point still deny it and he said, "No, it is already granted and approved...just waiting on completion".

But, Im still weary to be honest. It's been well over a week since he said a decision has been made and e-bennies is still in ROE and no movement at all, no envelope, no further info.

[veteran7796]

john999,

No I am not expecting further surgery. I have limited mobility when looking left, chronic tension headaches and inflammation as a result of my neck injuries. First was a torn muscle in the back right side of my neck and the other was a severe strain the same area several years later. Both put me out for a while and both occurred overseas on duty (the last one during OIF/OEF ops).

[NavyWife]

They are probably looking it over carefully to see if they screwed up anything else before marking it as complete.

It's really a shame that we basically have to do VA's job for them on these claims sometimes.

It sounds like they completely ignored their own C&P exam.

Also they are supposed to read the medical evidence in your C file As a standard part of processing any claim.

The veteran shouldn't have to send them another copy of what is already in the medical records, But unfortunately unless it's right in front of their face, They seem to ignore evidence on many occasions.

Good for you for being proactive on your claim and being familiar with your own medical evidence!