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Jeffrey Smith

Agent Orange & Prostate Cancer - How is back pay calculated?

Question

Hi all,

I have two questions:

A) I was diagnosed with Prostate Cancer in early February 2016, filed a claim with the VA on February 16, 2016 and received the VA's 5/17/2016 notice of Original Award of 100% disability rating due to Agent Orange exposure in Vietnam (1968-1969). I've done quite a bit of research (including here on hadit.com) trying to understand the VA's back pay provisions to make sure I'm being properly compensated but most of what I've found seems to be a lot more complicated than what I think is my pretty simple issue. The VA's letter itself is a little confusing to me - excerpts follow:

 

  • "Effective Date: 2/16/2016"

  • "Payment Start Date: 3/1/2016"

  • "Generally, payments begin the first day of the month following the effective date. When applicable, a retroactive payment, minus any withholdings, will be issued. Thereafter, payment will be made at the beginning of each month for the prior month. For example, benefits due for May are paid on or about June 1." 

 

I received payment for 2 months retroactive around 5/17/2016 and payment on June 1 (for May 2016). But it seems to me that if my "Payment Start Date" was 3/1/2016 (presumably for February), I should have had 3 months of retroactive pay (not 2), for 3/1, 4/1 & 5/1 before normal monthly payments began on June 1.  Am I correct here or am I misunderstanding something?

B) Maybe I'm looking in the wrong places, but I came across the following information from the " §3.114  Change of law or Department of Veterans Affairs issue", (a) Effective date of award that provides: " (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.  (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))" (this info was found at http://www.benefits.va.gov/WARMS/docs/regs/38cfr/bookb/part3/s3_114.doc which I was referred to from this link: http://www.veteranprograms.com/id1757.html ("Section 4. Other Claims").  Since I filed the claim more than a year after the effective date that the law recognizes prostate cancer as presumptive under the VA's Disability rules, should my retroactive pay be for 1 year prior to the 2/16/2016 date of my claim?

Thanks for any help anyone can provide - you all are providing a great service!

Jeff Smith

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When I click on the M21 link it has the quote but seems to only apply to Vets with AO from Korea and also children of Vietnam Vets ( with -I assume- Spinal Bifida). I didnt copy the whole thing. Hopefully others will chime in on this.I could find any BVA decision that referred to this either.

§3.114  Change of law or Department of Veterans Affairs issue.

 

            "(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.

 

                        (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.

 

                        (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.

 

                        (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.  (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))

 

            (b) Discontinuance of benefits. Where the reduction or discontinuance of an award is in order because of a change in law or a Department of Veterans Affairs issue, or because of a change in interpretation of a law or Department of Veterans Affairs issue, the payee will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If additional evidence is not received within that period, the award will

 

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45 minutes ago, Berta said:

M21 link ?

Thanks for posting,  Berta. Not sure what that M21 link refers to ... can you clarify?

My bad for quoting the wrong law.   Searching Google for:  VA "Disability Compensation" "Effective date of award" "Agent Orange" "prostate cancer" I find the 1st link refers to VA case law at:  http://www.va.gov/vetapp08/files5/0836040.txt which provides:

"As the veteran cannot be deemed a Nehmer class member, the 
effective date of the award shall be determined in accordance 
with 38 C.F.R. §§ 3.114 and 3.400.  38 C.F.R. § 3.816(c)(4)."

Searching Google for "38 C.F.R. §§ 3.114" which (from above) appears to be the correct law, the 3rd link is:

http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1967 which provides the same language as that applicable to the " Vets with AO from Korea and also children of Vietnam Vets" quoted above, to wit:

"Additionally, VA regulation § 3.114(a) provides:

 

(a) Effective date of award. Where pension, compensation, [or DIC], ... is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, [or DIC], ... is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.

 

(1)   If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.

 

(2)   If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.

 

(3)   If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request."

So, again, I may be misunderstanding here, but I still have the same two questions as in my initial post (although hopefully better referenced in this latter post).  Again, I appreciate any help here.

 

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"So, again, I may be misunderstanding here, but I still have the same two questions as in my initial post (although hopefully better referenced in this latter post).  Again, I appreciate any help here. "

The info I posted is from the M 21 link you posted.

Did you file a formal AO prostate Cancer claim within the year the regulation became law?"

If so, and it was denied, then the CUE would have to based on that denial.

"based on claims received within one year of the

regulatory change The Board further notes that VA liberalized its regulations 
to add prostate cancer to the list of presumptive diseases 
associated with herbicide exposure effective November 7, 
1996.  See 61 Fed. Reg. 57,586 (November 7, 1996).  Thus, 
this is not a claim where an earlier effective date of award 
can be premised on the provisions of 38 C.F.R. § 3.114(a), 
which provides for an earlier effective date in certain 
circumstances based on claims received within one year of the 
regulatory change.  See Liesegang v. Sec'y of Veterans 
Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002)."

Others can clarify this more. this probably arose from a CAVC or COVA case.

 

 

Edited by Berta

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Hi Berta,

 

To your question: " Did you file a formal AO prostate Cancer claim within the year the regulation became law?" ... the answer is no.  As indicated in my initial post:  " I was diagnosed with Prostate Cancer in early February 2016, filed a claim with the VA on February 16, 2016 " (well after the effective November 7, 1996 date of the liberalizing law). So, I don't think the other info you quoted applies to me ...

So, I'm still hoping to find answers to the 2 questions posed in my initial post (but, again, hopefully better referenced in my 2nd post) ...

.

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I was focusing on this statement:

" Since I filed the claim more than a year after the effective date that the law recognizes prostate cancer as presumptive under the VA's Disability rules, should my retroactive pay be for 1 year prior to the 2/16/2016 date of my claim?"

The answer is no.

You sure might be correct on the missing month of retro but others will chime in on that..

They do make many errors.

 

 

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