ptsd Claim From 1968

[sixthscents]

I am interested in hearing everyones opinion on the possibility of submitting a claim for retro pay for a gunshot injury during combat in 1968. The veteran was treated by the VA since discharge for the injury, but never filed a claim for compensation until about 2 years ago. This was a serious injury, but the Veteran was unaware that he could even file, though he had been in the VA medical system since 1969 or so. The VA has readily admitted service connection (even though the lowballed the rating of course) and a NOD is ongoing for all the ratings, PTSD etc., but the initial gunshot wound and the 2 purple hearts for injuries sustained during that action (also along with the silver star with v device) leave little room for arguing service connection for the trauma to the foot.

I am unsure what route to take here. The VA obviously had a duty to tell the veteran that he could file for compensation, but until I became aware of the situation, he had no clue. So:

1. Where do I start...

2. What level do I start at..BVA or VARO

3. What specific cases or references might pertain to this?

4. What are the odds of success? i.e. retro pay...

I appreciate the help with this, the Vet has obviously left out in the cold for about 30+ years.... Our wonderful VA system....

Bob Smith

[Guest jstacy]

Look at the 38 cfr 3.400 Effective dates. It states effective date is date of the claim or entititlement arose. If he did not file within 1 year separation for his GSW, There is no chance for retro.

[carlie]

Because he didn't know he could file a claim won't hold any water - Sorry

this is in no way a CUE. File his claim ASAP and make sure to claim EVERY DISABILITY he may be entitled to.

Good luck,

carlie

[vaf]

I found something interesting in M21-1, Part D - Informal Claims, that states the following:

a. Characteristics of an Informal Claim. Identify an informal claim by any of the following characteristics:

· any communication or action that shows an intent to apply for benefits under laws administered by the

Department of Veterans Affairs (VA)

· an original claim not filed on the prescribed form

· an unsigned application (except for those claims received via the Veterans On-Line Application (VONAPP))

· evidence of examination or hospitalization in a VA or uniformed services health care facility, or

· any communication regarding the death of the appellant in an appeal

-1 submitted to the United States Court of Appeals for Veterans Claims (CAVC), and

-2 furnished to the VA by CAVC.

Reference: For more information on communication regarding the death of an appellant, see De Landicho v. Brown, 7 Vet. App. 42 (1994).

----------------------------------------------------

Would the fact that the veteran was treated in a VA Hospital for a wound he suffered while active duty not constitute an informal claim? By the sound of the VA's procedures manual, it's up to them to identify this veteran's situation as an informal claim. Of course, we don't know what the manual said in 1969, but I suspect that whenever the current policy came into existence can be the effective date of the claim.

I think the argument would be worth a try. Otherwise, what does the statement above mean?

[carlie]

Vicki,

That only shows the vet was seeking health care and would not hold water as far as seeking service connection.

Also I thought about trying 38 CFR 3.157, but I don't think he could use that one because no claim had been filed, awarded or denied prior to the VA health care received.

JMHO,

carlie

Edited November 11, 2006 by carlie

[vaf]

Carlie, my understanding is that the veteran has already been granted service connection, it's the earlier effective date of service connection and retro pay he's seeking. The proximity of the veteran's treatment at the VA for injuries related to a GSW, compared to the date the veteran was wounded, was approximately one year, which should have clearly indicated to the VA that the situation qualified for recognition as an informal claim for service connection of that same injury. M21-1 says that this is the VA's responsibility whenever there's "evidence of examination or hospitalization in a VA or uniformed services health care facility." It appears that the VA also shared responsibility for recognizing a claim situation existed, although informal.

A look at the veteran's service medical records, and discussion of the history of this wound as found in his VA medical records so soon after his discharge, should document the service connection.

I guess I'm not understanding the difference between "seeking healthcare" vs. laying grounds to qualify for an informal claim. The nature and timing of the injury, as well as the treatment the veteran received for it from the VA and it's later being granted service connection, I think constitutes a good argument that the VA should have recognized it as an informal claim, with the effective date being the day after his discharge from the military (if within one year of discharge), or whenever he first sought care from the VA.

Please explain how that particular characteristic of an informal claim, "evidence of examination or hospitalization in a VA or uniformed services health care facility," doesn't apply to this veteran, because I'm still not seeing it. Thanks!

[sixthscents]

Wow..good stuff..to clarify

The veteran has already been granted service connection for the gunshot wound to foot. He is being compensated for it, and I have filed numerous other claims and won such as PTSD etc. They lowballed the comp rates, buts thats under NOD. The gunshot wound was treated both in service and later by the VA with both systems performing numerous operations on the foot. The Veteran has been in the VA healthcare system since discharge. However he only recently filed for ocmpensation, with half his foot missing. Yeah its that obvious. He was injured in Vietnam, received 2 purple hearts and the silver star for his action during the campaigne when he was wounded.

I wonder about the informal though...I will look at it...thank you. Maybe, I hope because its such a blatant case, I mean half his foot is gone. No compensation until just a few months ago. It just makes me madder than heck.. I WANT the VA to have to backpay the guy. He deserves it. Unbelieveable system.