diabetes Appeal Effective Date

[Papa]

In 2012, I was awarded 100% P&T for PTSD, Housebound, both knees, back, nurophy, diabetes, Parkinson's, etc.  My issue is that I have to maintain the 100% for 10 years before my wife can qualify for DIC.  While no one can know when it is their time, you can look at my list, and see it is not good. 

Younger Vets may or may not under stand this, but most of the Vietnam Vets should.  In 1973, I was having a very hard time adjusting, and my Back was killing me from an injury.  I went to the VFW, and ask the guy what I would like to do, and he started crying like a baby, and told me to get the "F" out of his office, he was fed up with cry babies.  Some people are very brave when they have 4 people backing them up.  I finally got a DAV VSO to put the claim in for me, for emotional issues and for my Back.  They both came back rejected because they were not in my record.  They were saying that I had zero treatment.  It took me 40 years, but I finally got the VA to admit that I did injure my Back in the service and was treated for it.  I was also sent to the Shrink in 1969, since the Doctors could not figure out a medical problem I was having.

Now, I'm honestly not interested in any back pay (I am not stupid however) all I really want is the change of the effective date to help with the DIC. 

PAPA

Missed you all.

[Vync]

Hi Papa,
I am researching something similar, so I am looking forward to hearing responses from others. Good to hear from you again.

[Buck52]

papa

if a claim was filed back in 73  and you were not paid...heck yes file a claim for your EED.

They may come back and say your EED is when you first filed  what ever that date was? 10 years ago? you may never know if you don't file Buddy.

 

JMO

.................................Buck

[broncovet]

Lets look carefully at the regulation, and you can see if 5 years applies to you:

3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of death.

(a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if:

(1) The veteran's death was not the result of his or her own willful misconduct, and

(2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was:

(i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death;

(ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or

(iii) Rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war.

(Authority: 38 U.S.C. 1318(b))

(b) For purposes of this section, “entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied:

(1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or

(2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or

(3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because:

(i) VA was paying the compensation to the veteran's dependents;

(ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;

(iii) The veteran had not waived retired or retirement pay in order to receive compensation;

(iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);

(v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or

(vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309.

(c) For purposes of this section, “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter).

[broncovet]

In the above, the regulation seems somewhat ambigious.  In Section a II above, it appears to me that not all 3 of those are required:  Totaly disabled for 10 years, the most recent 5 years, and a pow.  THere is the operator "or", which would mean any of the 3 would make your wife eligible.  Expect the VA to fight you on this, find a competent attorney for her.  

Best is if you just live to 10 years!  

Or, as you pointed out you can try to get an earlier effective date.  I suggest both.  If you get a pile of money from the effective date you dont need, if you really so choose, you can donate all or a part of it back to the charity of your choice, INCLUDING the VA, as they accept donations.  

[pwrslm]

Start by getting your service medical file from St Louis.  You also should get your 201 File at the same time, to check for anything related to the injuries in question.  Simultaneously, get a copy of your C File sent to you.

If the C File shows that they had any information that proves your condition was service connected on hand during the first claim submission, then you probably have a solid case to present.  If the RO denied your claim, and you can show that they had information/records that prove you were eligible for SC of specific conditions, this is a clear and unmistakable error (CUE).  Check the C File for your medical records, note the date that the RO received them.  They should have acquired the records for your initial claim, and this is where you need to find it to get the earlier date.  If they failed to get them, then you still can do this, but it is an uphill fight.  In 1973, the duty to assist was not the same as it is today.

 

[broncovet]

Great advice by pwrslim.  Getting your cfile and knowing what is in it is never a bad idea.