back pay

[gousto0731]

in 2002 I filed a claim for left shoulder injury due to overuse I was denied I appeal I lost the appeal.

I tried again in 2012 was denied  I appeal  again an this time my doctor using all the medical info from 2002 to present Stated.

since 2002 stated that VA treatment records previously indicate that your left shoulder injury was likely due to overuse and your treating orthopedic provider also referenced your previous MRI results and right shoulder history in finding that he was 100 percent certain that it was secondary to favoring the right shoulder. Therefore, the preponderance of evidence indicates that your left rotator cuff tear was due to your service-connect right shoulder disability.

Is it possible to request back pay dating back to 2002.

[Guest]

1 hour ago, gousto0731 said:

in 2002 I filed a claim for left shoulder injury due to overuse I was denied I appeal I lost the appeal.

I tried again in 2012 was denied  I appeal  again an this time my doctor using all the medical info from 2002 to present Stated.

since 2002 stated that VA treatment records previously indicate that your left shoulder injury was likely due to overuse and your treating orthopedic provider also referenced your previous MRI results and right shoulder history in finding that he was 100 percent certain that it was secondary to favoring the right shoulder. Therefore, the preponderance of evidence indicates that your left rotator cuff tear was due to your service-connect right shoulder disability.

Is it possible to request back pay dating back to 2002.

The crazy one here, Okay the answer you have been waiting for but really don't want to here. IMHO and I hope I am wrong but the farthest VA can go back is 2012.  Yes, I know you received a medical opinion that used medical evidence from 2002 to present but this information was not available in 2002, it wasn't even available in 2012 but since you filed the appeal in 2012 and won. VA should at least go back to that claim date. Hope others chime in and congrats on your win.

[gousto0731]

Thanks  you Master chief

[broncovet]

This is a very good question!  Im not sure it can be answered without more facts, but, yes, 2002 is certainly possible.   Think about it.

Ok, the VA first alleged your shoulder condition was not sc.  You appeal.  Finally, much later,  the VA admits it is Service connected.  

So the question is "when" was it service connected?  Did you have an injury that was non sc, then you went into a c and p exam, and "poof" your injury miraculously changes from Non SC to SC for compensation purposes?  I dont think there is anything that can happen in this doctors office to "convert" your injury from non SC to SC.    However, rememeber the VA is likely to fight you on this.  They fight very hard, and very long over effective dates.  We have to also, to win.    

You need to appeal the most recent decision, and allege the effective date is in error, arguing your effective date is when you "first applied" in 2002.  

Your effective date is the Latter of the date you applied OR the date the doc said you had the condition and symptoms (facts found).  

I have no idea when your doctor said your malady occurred, or when you reported symptoms that meet the applicable rating criteria.  

My reccommendations:

1.  Get your C file and read it over with a fine tooth comb, and see when the doctors report your symptoms and what symptoms they report, and when the doc said you had them.  

2.  Timely file a NOD, disputing the effective date, and lay out your reasons.  Cite your doctors findings to support your position, if possible.  

3.  If a doctor did an exam, in say, 2015, and opined your condiition was at least as likely as not due to military service, see if it says he reviewed your file, and if he gave a date  he believes your symptoms began.  If you go to the doctor, they always ask me, "how long have you had this cough you are seeking treatment for"?  Or, "how long ago did you injure this wrist"?    There is a great chance your evidence is right there in your cfile and the rater either "didnt read" your evidence, or conviently forgot reading it.  Your cfile review should show if its there.  If its not there, you can sometimes submit n and m evidence under 3.156 to win an earlier date.  CUE can not be ruled out, either, until all the facts including your cfile and the decisions are reviewed carefully to identify if there were clear errors rising to the level of the Cue standard of review.    

4.  However, lets say you dont have evidence in your file that you had the condition, in 2002.  Then you need an IME/IMO to opine that "he reviewed your records...and, based on that, he opines that you have had xxx condition since z date, that is at least as likely as not related to yy injury in military service"

He then needs to give a reason why he concluded this, such as your x ray indicates an old fracture that occurred 20 years ago, or, there was an x ray dated May 2002, that indicated the same thing.  

    This is some 14 years potential retro, and a great attorney experienced in winning EED's will help.  

Edited February 11, 2016 by broncovet

[broncovet]

There are also many other possibilities for an earlier date, that I did not discuss, above.

For example, did you first apply within a year of your exit from military service?  

Were your RO decisions defective/ or erroneous? Did they give an adequate reasons and bases?  

Read this and see if any of these common VA errors apply to you:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

[Buck52]

Great advice from broncovet!

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

[gousto0731]

not only did I have this condition in 1998 I received service connection for right shoulder separation is granted with a 0% evaluation assigned.

what should I do next.