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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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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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"If anyone wants to refer me to a linked document or case law & quote me the relevant portion of same that provides the definitive answers I'm seeking, I'd be grateful."

I felt frustrated because the BVA link you had posted above contained the answer to your question and the exact reason my answer was and still is  No:

"Citation Nr: 0836040	
Decision Date: 10/21/08    Archive Date: 10/27/08

DOCKET NO.  06-07 222A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake 
City, Utah


THE ISSUE

Entitlement to an effective date earlier than October 29, 
2002, for the award of service connection for prostate cancer 
as a result of herbicide exposure.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The veteran served on active duty from November 1969 to 
November 1971.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a March 2003 rating decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in Salt Lake 
City, Utah.  In that decision, the RO granted service 
connection for prostate cancer and assigned an initial 20 
percent evaluation effective October 29, 2002.  The veteran 
has appealed the effective date of award assigned.

The veteran failed to report for a video-conference hearing 
before the Board scheduled in May 2007.  The Board will 
proceed as if the hearing request has been cancelled.  
38 C.F.R. § 20.704(d).

The Board notes that, in an Informal Hearing Presentation 
dated October 2008, the veteran's representative contended 
that the RO committed clear and unmistakable error (CUE) in 
an October 2001 rating decision which denied a claim of 
entitlement to nonservice-connected pension.  This issue, 
which has not been developed and adjudicated by the RO, is 
referred to the RO for appropriate action.


FINDING OF FACT

The veteran first filed a formal claim for service connection 
for prostate cancer on October 29, 2002, and there are no 
communications prior to this time which may be considered a 
formal or informal claim.


CONCLUSION OF LAW

Entitlement to an effective date earlier than October 29, 
2002, for the award of service connection for prostate cancer 
as a result of herbicide exposure is not warranted.  
38 U.S.C.A. §§ 1110, 1112, 5110 (West 2002); 38 C.F.R. 
§§ 3.114, 3.155, 3.400, 3.816 (2007).



REASONS AND BASES FOR FINDING AND CONCLUSION

Section 5110(a), title 38, United States Code, provides that 
"[u]nless specifically provided otherwise in this chapter, 
the effective date of an award based on an original claim . . 
. of compensation . . . shall be fixed in accordance with the 
facts found, but shall not be earlier than the date of 
receipt of application therefor."  The implementing 
regulation, 38 C.F.R. § 3.400, similarly states that the 
effective date "will be the date of receipt of the claim or 
the date entitlement arose, whichever is the later."  When 
an application for disability compensation is received within 
one year of the date of the veteran's discharge or release 
from service, the effective date of such award shall be the 
day following the veteran's release.  38 U.S.C.A. 
§ 5110(b)(1). 

The VA administrative claims process recognizes formal and 
informal claims.  A formal claim is one that has been filed 
in the form prescribed by VA.  See 38 U.S.C.A. § 5101(a); 
38 C.F.R. § 3.151(a).  An informal claim may be any 
communication or action, indicating an intent to apply for 
one or more benefits under VA law.  Thomas v. Principi, 16 
Vet. App. 197 (2002).  See 38 C.F.R. §§ 3.1(p), 3.155(a).  An 
informal claim must be written, see Rodriguez v. West, 189 F. 
3d. 1351 (Fed. Cir. 1999), and it must identify the benefit 
being sought.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998). 

Although a claimant need not identify the benefit sought 
"with specificity," see Servello v. Derwinski, 3 Vet. App. 
196, 199-200 (1992), some intent on the part of the veteran 
to seek benefits must be demonstrated.  See Brannon v. West, 
12 Vet. App. 32, 34-35 (1998).  See also Talbert v. Brown, 7 
Vet. App. 352, 356-7 (1995) (noting that while VA must 
interpret a claimant's submissions broadly, VA is not 
required to conjure up issues not raised by claimant).  The 
United States Court of Appeals for the Federal Circuit has 
emphasized VA has a duty to fully and sympathetically develop 
a veteran's claim to its optimum.  Hodge v. West, 155 F.3d 
1356, 1362 (Fed. Cir. 1998).  This duty requires VA to 
"determine all potential claims raised by the evidence, 
applying all relevant laws and regulations," Roberson v. 
West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to 
giving a sympathetic reading to all pro se pleadings of 
record.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 
2004).

In this case, there is no dispute that the veteran filed a 
formal claim for service connection for prostate cancer on 
October 29, 2002.  The RO has assigned the effective date of 
award effective to this filing.  The veteran argues for an 
earlier effective date of award based on the premise that he 
filed a claim for non-service connected pension on August 13, 
2001, which should be construed as an application of service 
connection for prostate cancer.  

Alternatively, it is argued that the RO received notice on 
September 21, 2001, that the veteran received VA treatment 
for prostate cancer, and that his prior service in Vietnam 
raised an informal service connection claim, as prostate 
cancer is a diseases subject to presumptive service 
connection for veterans who served in Vietnam during the 
Vietnam Era.  See 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

The Board has carefully reviewed the documents of record 
prior to the October 29, 2002 date of award and finds, as a 
matter of law, that the veteran had not filed an earlier 
claim for service connection for prostate cancer.  

The August 13, 2001, claim for non-service connected pension, 
which also included a claim for an increased rating for 
service connected left hand disability, simply contains no 
language indicating an intent to seek service connected 
benefits for prostate cancer.  In fact, this document did not 
even reference prostate cancer as a current disability.

The Board has also considered the argument that the RO accept 
the veteran's VA treatment records, showing an inpatient 
admission on September 20, 2001 and/or initial notice of VA 
treatment for prostate cancer on September 21, 2001, as an 
informal claim for service connected benefits.  Notably, a VA 
treatment record may only serve as an informal claim for 
benefits once a formal claim for compensation has been 
allowed.  38 C.F.R. § 3.157.  This provision therefore, does 
not apply. 

The Board has also considered the provisions of 38 C.F.R. 
§ 3.155 inasmuch as it is argued that VA should have implied 
a service connection claim for prostate cancer based upon his 
known prior service in Vietnam, and that such diseases may be 
presumptively service connected under 38 C.F.R. 
§§ 3.307(a)(6) and 3.309(e).  The Board notes that the mere 
presence of medical evidence of a disability does not show an 
intent on the veteran's part to seek service connection and 
therefore does not constitute a claim; rather, the veteran 
must assert a claim either expressly or impliedly.  VA is not 
required to conjure up issues not raised by the claimant.  
Brannon, 12 Vet. App. 32 (1998).  Therefore, the Board 
declines to view any references to prostate cancer in his 
medical records as a claim for VA compensation based on 
prostate cancer.

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).

Finally, the Board is cognizant that, with respect to claims 
governing effective dates for service connection for diseases 
presumed to have been caused by herbicide or Agent Orange 
exposure, VA has issued a special regulation to implement 
orders of a United States District Court in the class action 
of Nehmer v. United States Department of Veteran's Affairs.  
38 C.F.R. § 3.816.  See also Nehmer v. United States Veterans 
Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer 
I); Nehmer v. United States Veterans Administration, 32 F. 
Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. 
Veterans Administration of the Government of the United 
States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). 

However, the veteran is not a Nehmer class member since he 
had not been previously denied compensation for prostate 
cancer nor had a claim of service connection been received 
prior to October 29, 2002.  

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).

Based upon the above, the Board must find that the veteran 
does not meet the criteria for establishing an effective date 
prior to October 29, 2002, for the award of service 
connection for prostate cancer.  There is no doubt of 
material fact to be resolved in the veteran's favor.  
38 U.S.C.A. § 5107(b).  Rather, based upon the undisputed 
facts of record, the claim must be denied as a matter of law.

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Here, the veteran is challenging the effective date assigned 
following the grant of service connection.  In 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the 
Court held that in cases where service connection has been 
granted and an initial disability rating and effective date 
have been assigned, the typical service-connection claim has 
been more than substantiated, it has been proven, thereby 
rendering section 5103(a) notice no longer required because 
the purpose that the notice is intended to serve has been 
fulfilled.  Id. at 490-91.  Thus, because the notice that was 
provided before service connection was granted was legally 
sufficient, VA's duty to notify in this case has been 
satisfied.

Nonetheless, the Board notes that the RO provided the veteran 
a letter in March 2006 notifying him of the criteria for 
establishing an effective date of award.  Thus, although 
further notice was not required, the RO in fact did provide 
additional notice consistent with the holding in Dingess.

The Board further notes that the earlier effective date claim 
on appeal involves a retroactive review of the documents of 
record prior to the effective date of award assigned.  There 
are no issues of fact in dispute which must be resolved to 
decide this case, rather the case involves a review of the 
documents and statements of record to determine whether the 
legal standard for an earlier filed claim has been met.  This 
case ultimately involves a claim that cannot be substantiated 
as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 
430 (1994) (where the law and not the evidence is dispositive 
the Board should deny the claim on the ground of the lack of 
legal merit or the lack of entitlement under the law); 
VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to 
provide notice of the information and evidence necessary to 
substantiate a claim where that claim cannot be substantiated 
because there is no legal basis for the claim or because 
undisputed facts render the claimant ineligible for the 
claimed benefit).  Thus, further VCAA notice is not required.

The provisions of 38 U.S.C.A. § 5103A require VA to provide 
assistance to the claimant in the development of the claim.  
In this case, the record contains all records relevant to his 
claim on appeal.  The veteran has not alleged the existence 
of any documents submitted to VA which could establish that a 
claim of service connection for prostate cancer had been 
filed prior to October 29, 2002.  For the reasons specified 
above, any additional private or VA treatment records, or 
Social Security records, could not provide a basis to grant 
this claim.  See 38 C.F.R. §§ 3.155, 3.157.  The issue in 
this is not the actual onset of disease but, rather, the 
legal issue of when a claim for service connected benefits 
was filed with VA.  Accordingly, VA has no further duty to 
assist the veteran in the development of his claim.

ORDER

The claim of entitlement to an effective date earlier than 
October 29, 2002, for the award of service connection for 
prostate cancer as a result of herbicide exposure is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


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On 6/3/2016 at 4:43 PM, Jeffrey Smith said:

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

 

"benefits may be authorized ", not will be authorized!   It's kinda like 54/40 or fight!

 

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Ok, since I don't seem to be getting definitive answers to the questions I have posed, let me try asking the 2nd question differently.

VA regulation § 3.114(a) provides (in part):

(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."

Since I filed my claim on 2/16/2016 (well more than a year after the 1996 VA law that recognized Prostate Cancer has a presumptive association with Agent Orange), it seems that my retroactive pay should be for 1 year prior to the 2/16/2016 date of my claim.  Berta has copied and pasted VA case law that she says supports her conclusion that the answer to this is "No".  However, I can't find the answer in what she posts as to why my claim isn't qualified, and she seems unwilling to be more specific.

Chuck75 - responded that: "benefits may be authorized ", not will be authorized!   It's kinda like 54/40 or fight! " Chuck, I take your point, but I am trying to find out what makes a claim such as mine fall in the authorized 1 year retro, or alternatively, what makes it unauthorized for same.

So, again, can anyone tell me the answer to that question here?

Also, I haven't had a definitive answer to my 1st question as to whether I was shorted a month in the initial retro payment.

I know I can pursue this by filing appeals with the VA but I don't want to waste my time or theirs if it's not justified. I'm pretty sure that I am not the first one to confront these issues so I was hoping to get guidance from those who have been down this road before and could provide links to governing laws.  I'm not trying to get retro pay I'm not entitled to, but I don't want to leave money on the table either.

Thanks for any assistance.

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On 6/18/2016 at 11:09 PM, Judy said:

Tbird, I see the link here for the Historical Compensation Rates (of) 1974-2004. Can you tell me where to find the rates from 1970 - 1974?

 ( Dr. Bash and I firmly believe we have won my CUE; waiting for decision of course) and I would like to find those old compensation rates. Thanks, Judy

Judy I could not find them either. Sorry.

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The  Agent Orange law is explained like this. Say you filed for prostate cancer under any theory (direct or presumptive) back in 1999 and were denied, the date is still preserved for you. I got a guy SC for DM2 after a prolonged fight in 2010. He'd filed for it in 2002 and was denied because he couldn't prove boots on the ground. Once he won on the presumptive, they granted it back a YEAR before he filed for it-i.e. 2001. If you just filed for it in 2016, that is the effective date but if you'd filed for it earlier, you would get that date even if it was before the disease was added to the list. 

This creates a problem. Should we all shotgun file for Parkinson's and lose but wait to come down with it? Or all the other diseases for that matter. It would guarantee an EED for any you develop afterwards.

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

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      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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