ptsd Backpay

[Rita]

I ran into a former employee (also a Veteran) he received his 100% rating and they paid him back pay from his service date, I want to say he got out about 15 years ago.  I told him I had just filed for PTSD with secondary of MST, he informed me I should receive back pay to my military days is there any truth to that.\?

[Berta]

"The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2011).  See 38 C.F.R. § 3.400 (2012) (to the same effect).  An exception to that rule applies if an application for benefits is received within one year from the date of a veteran's discharge or release from active service, and an award is made on the basis of that application. In that situation, the effective date of the award is made retroactive to "the day following the date of discharge or release . . . ."  38 U.S.C.A. § 5110(b)(1) (West 2002 & Supp. 2011).  See 38 C.F.R. § 3.400(b)(2) (2012) (to the same effect); Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). "

I assume the vet you mentioned applied for comp within the first year after his discharge and was awarded SC based on that claim..

[broncovet]

Berta, as usual, did a good job explaining this.  If you apply within a year of discharge, yes, your effective date should be the date of discharge. 

Of course, the VA awards benefits the later of the date the doc says you are disabled, or the date you applied.  

[Jamezam]

On June 15, 2016 at 6:18 AM, Berta said:

"The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2011).  See 38 C.F.R. § 3.400 (2012) (to the same effect).  An exception to that rule applies if an application for benefits is received within one year from the date of a veteran's discharge or release from active service, and an award is made on the basis of that application. In that situation, the effective date of the award is made retroactive to "the day following the date of discharge or release . . . ."  38 U.S.C.A. § 5110(b)(1) (West 2002 & Supp. 2011).  See 38 C.F.R. § 3.400(b)(2) (2012) (to the same effect); Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). "

I assume the vet you mentioned applied for comp within the first year after his discharge and was awarded SC based on that claim..

Hi Berta, these two regulations are the most confusing and infuriating to me. Here's the scenario, a Veteran applies for a VA claim while still on active duty, said Veteran's claim is received by the VARO within the first year of his end of active duty service, the Veteran's claim is denied within the first year, the Veteran doesn't appeal the claim within the NOD period, the Veteran files again later, he is awarded his claim...

Does the Veteran's effective date revert back to the original filing date because he did indeed file within the first year of getting out of the military? Couldn't the future claim award be construed as an increase in disability? The law seems vague to me and doesn't the application of BOD or liberal interpretation in favor of the Veteran apply?

[Berta]

The fact that VA gives us appeal rights overcomes any future requirement that they have to consider any past denials.

BOD really only comes into play when there is evidence to weigh.

Only 38 CFR 3.156 claims and CUEs can rectify past denials.

BOD rests on evidence, it is also called Relative Equipoise.

Here is how they stated my BOD rights in my BVA award:

"3.  The weight of the competent evidence is at least in

relative equipoise on the questions of whether the Veteran

had diabetes during his lifetime that was caused by Agent

Orange exposure during his Vietnam service, and whether that

diabetes caused or contributed substantially or materially in

causing the Veteran's death.

 

 

CONCLUSION OF LAW

 

Resolving reasonable doubt in the appellant's favor, the

criteria for service connection for the cause of the

Veteran's death are met.  38 U.S.C.A. §§ 1310, 5107 (West

2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2008)."

In other words ,there has to be evidence for the claim and against the claim for BOD to be considered.

If the weight of the evidence is 50/50 or better then that for the claimant, the VA will award.

 

 

 

[Berta]

I need to clarify this:

"Only 38 CFR 3.156 claims and CUEs can rectify past denials"

That is if the claim had probative evidence that 3.156 warranted or the VA made a legal error in the denial, to the veteran's detriment.