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Question on Retro Pay

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Dave P.

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Hello new member here and need some help on Retro pay.  Retired 28 year AF veteran.  Eleven years enlisted, 17 years officer.  I have just been upgraded from 60% to 100% with several more claims pending.  Retired June 1st 1997.  The VA just approved several of my claims that were service connected with retro active dates.  One (Sleep Apnea - service connected) goes back to August 2004 and put me over 50%.  The VA with its Decision Award letter dated 07/22/ 2016 provided a table of Compensation and Retirement pay adjustments starting 09/01/2004 to 08/2016, effective April 19th, 2016.   My DAV rep said I will get back pay.  My county VA rep says I will not get back pay because I'm retired.  I've read most of the applicable CRFs and I'm still confused.  County VA rep printed these off today. Yes or No.

Combined Evaluation for Compensation Is:

30% from 07/01/1997

100% from 02/02/1998 (38 CRF 4.30) (Paid)

30% from 04/01/1998

60% from 08/30/2004 (New resultant ratings from this date)

80% from 08/10/2005

100% from 08/19/2013 (Bilateral 1.9% dia, codes 5203, 5203, 5259, 5257) Not paid

100% from 10/01/2013 (Bilateral 1.9% dia, codes 5203, 5203, ) Not paid

100% from 03/25/2014 (Bilateral 1.,9% dia, codes 5203, 5203, )(38CRF 4.30) Not paid

100% from 05/011/2014 (Bilateral 1.,9% dia, codes 5203, 5203, ) Not paid

90% from 05/01/2015 (Bilateral 6% dia, codes 5203, 5203, 5055, 5055) Not paid

100% from 04/19/2016 (Bilateral 6% dia, codes 5203, 5203, 5055, 5055) Not paid

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Effective dates are one of the most complex areas of law, and a great answer can not be given for you unless there is a thorough review of your file.

Generally, your effective date will be the later of the date you applied, or the date the doc said you became disabled.(facts found).  Since I dont have any idea what date the doc said you were disabled, it would take a review of your file to find out.  Most VA lawyers would do this for you at no charge, then you can decide if you want to hire the attorney, or persue your effective date appeal yourself.

There are multiple exceptions to the general rule above, tho.  Did you submit new and material evidence under 3.156 ?  Did you apply for benefits within a year of discharge?  Did you have "notice" violations?  Did you have "inferred" claims?   Do you have a presumptive condition?  Was there a liberalizing law?  As Buck said, I suggest you take your file to a lawyer, unless you want to spend the next year or so of your life researching case law on effective dates.  If I recall, the VBM has about 50 pages on effective dates, and my VBM is not current, its the 2014 version, so there is likely more now.  

Certainly you can appeal the effective date yourself.  If you lose at the BVA, you can get an attorney then, as its usually fairly easy to get a lawyer with a BVA denial within 60 days.    

Another question is because you are a retiree, CDRP, and I dont have knowledge of that one.  

The bottom line is that since at least ONE person thinks you should get retro, you probably should appeal on that bases at a minimum.  A lawyer could identify other reasons, too.  Time after time I see Vets take stuff to lawyers.  The lawyer often wins benefits (only 10% of BVA claimants, represented by an attorney, are denied again upon appeal), but for different reasons than the Vet thought.  

Source:  I have 14 RO decisions, 3 BVA decision and 3 trips to the CAVC (2 were represented by an attorney, and one was a pro se writ of mandamus).  Currently I am represented by an attorney at CAVC, and the VA has offered a JMR.  My attorney is negotiating the terms of the JMR.  

Edited by broncovet
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Thank you for those LONG years of service.

Guys ...Everyone here needs to get up on CRDP and CRSC....I should not be one of the few members  here giving info out on these benefits...

A vet retiree had the same type of question just the other day....as soon as I can find it, with the links I gave him. probably to include the one Buck gave here, I will reply with those links.

I do agree this might mean retro but not sure how much......and hope it is boo coo but cant tell

 Total 30% effective 07/01/97

"Entitlement to temporary 100% for surgical right knee treatment for service connected surgery requiring convalescence.  100% from 2/02/98."

Can I assume this is the 100% you get now?

If so that sounds like a 20 year continuous award?

But I dont think there would be any CRDP credit for that award because CRDP in 1998 did not exist.

I wrote an amicus brief for a lawyer who was fighting for CRDP and CRSC regulations years ago and all that CRDP /CRSC litigation was long ago. This was one of the most important regulations Retirees have---and still have---

and we are seeing more and more retirees here all the time.

CRDP is automatic but CRSC has to be applied for and that concerns me that maybe many eligible veterans do not even apply for CRSC.

Here is the post I made:

This vet's VA award letter made a statement as to his potential  CRDP---did your award letter make any mention of that at all?

This is confusing as to the retro.

  "My county VA rep says I will not get back pay because I'm retired. " Say what?

How many other retirees has he told that Bull crap to?????????

Can you get him to explain what he means in an email and then post the email here? 

There is one thing I see here...if you were 100% direct SC at any point, then,after the CRDP regs went into affect.... I need to find that date)you have had additional SC ratings that qualified you for CRDP, it might mean that they need to consider you for the SMC S award,in lieu of additional 100% ......

It is confusing and I am not familar with the county reps print out criteria.

Can you scan and attach here ( cover C file number, name, address,)the actual recent decision letter and the audit statement they did?

VA makes errors in those audit statements. They made one to the tune of 40 thousand bucks in one of mine.After I challenged the audit.They kept ignoring my letters on the error , but the Regional Counsel ordered  them to pay me.

Is the DAV your actual POA?

 

 

 

 

 

 

 

 

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Your retroactive payment date may go as far back as January 1, 2004, but can be limited based on:

  • your retirement date or
  • when you first increased to at least 50 percent disability rating

No CRDP is payable for any month before January 2004.

 in my opinion the bottom line  is your eligibility for these retro benefits?, seems the criteria is based on rating% and dates.  January 2004 Change  things around.  the VA makes the criteria/eligibitly very difficult to decipher. 

Edited by Buck52
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Berta and Buck52, Thanks for your comments I'll try to answer your questions.  Berta first:

"Entitlement to temporary 100% for surgical right knee treatment for service connected surgery requiring convalescence.  100% from 2/02/98."

Can I assume this is the 100% you get now? No, that was paid for a temporary convalescence period, several months, then back to 30%.

If so that sounds like a 20 year continuous award? No, temporary.

This vet's VA award letter made a statement as to his potential  CRDP---did your award letter make any mention of that at all?  YES. I'll scan and paste below.

There is one thing I see here...if you were 100% direct SC at any point, then, after the CRDP regs went into affect.... I need to find that date)you have had additional SC ratings that qualified you for CRDP, it might mean that they need to consider you for the SMC S award, in lieu of additional 100% ......  No, this new decision July 25, 2016 rating gives me a sleep apnea rating effective August 30, 2004.  That combined with the existing ratings would have been 60% on August 30, 2004.

Can you scan and attach here ( cover C file number, name, address,)the actual recent decision letter and the audit statement they did? Yes. Do you mean CSS file?

Is the DAV your actual POA? Yes.

Buck52,

Your retroactive payment date may go as far back as January 1, 2004, but can be limited based on:

  • your retirement date or  1997
  • when you first increased to at least 50 percent disability rating  August 30, 2004

No CRDP is payable for any month before January 2004.

 in my opinion the bottom line  is your eligibility for these retro benefits?, seems the criteria is based on rating% and dates.  January 2004 Change  things around.  the VA makes the criteria/eligibitly very difficult to decipher.   Agree, I've read the law on CRDP about 15 times in the last two weeks, it is very confusing.  The confusing word is "retirees "MAY" receive CRDP if they meet these requirements..."  MAY what the heck can of word is that in a law, nowhere is MAY defined!

I believe I meet the requirements for CRDP, but May gives doubt. 

This is what the VA said in my July 25, 2016 letter:

We Have Withheld Benefits

You are not allowed to receive full military retired pay and full VA compensation at the same time. The following will provide an explanation of how this works:

What We Decided

  • If your VA compensation is less than your retired pay, you will receive compensation payments. The military service department will pay you the difference between your compensation and your retired pay.

  • If your VA compensation is greater than your retired pay, we will pay you
    compensation, and you will not receive retired pay.

    For now, we must withhold part of your compensation until August 1. 2016. We must do this to prevent a double payment. By working together with the military service department, we will make sure you get your full combined payment.

    Important Information:  VA compensation isn't taxable. Please contact the Internal Revenue Service for tax information.

    We Have Withheld Benefits

    As a military retiree, you may be eligible to receive Combat Related Special Compensation (CRSC) or Concurrent Retirement and Disability Payment (CROP), also called Concurrent Disability Pay (CDP), from the military for some or all of the retired pay waived to receive VA compensation. These benefits are available to military retirees with 20 or more years of service creditable for calculating retired pay. More information on these programs can be obtained by calling, toll free, 1-800-321-1080, or visiting the following web site:

          http://www.dfas.mil/rapay/disability/crscandcrdp.html

     

    For now we must withhold part of your compensation until August 1, 2016 for the period that your combined service-connected evaluation is less than 100 percent. We must do this to prevent a double payment. We work with the military retired pay center to ensure you receive the correct payment of benefits.

  • What we decided

Medical Description

Old Percent

(%) Assigned

New Percent

(%) Assigned

Effective Date

Sinusitis, sphenoid

10%

50%

Apr 19, 2016

Obstructive sleep apnea

0%

50%

Aug 30, 2004

 

Edited by Dave P.
Corrected table
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"For now, we must withhold part of your compensation until August 1. 2016. " In VA double talk they might mean the Sept 1 comp check....comp is always one month behind.

Or did they actually withhold an amount already???

"We must do this to prevent a double payment. By working together with the military service department, we will make sure you get your full combined payment."

Yeah right...some years ago DFAS and VA was messing up this stuff.

You should be receiving something probably from DFAS soon.

This link suggest contacting the branch of service you were in,

http://www.dfas.mil/retiredmilitary/about/contact-who.html

And CRDP is supposed to be automatic.

That is not much of an audit statement but it appears that is what they owe you.....(I hope)

The rate tables are here:

http://www.benefits.va.gov/COMPENSATION/resources_comp01.asp

We have CRDPers and CRSCers here so I hope they chime in.

 

 

 

 

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Hello All,

I believe I've found my definitive answer to my original question on receiving CDRP.  I've been reading many posts here and on Veterans Benefit Network.  I found a post from a similar vet with a response on Concurrent Receipt Programs in the Veterans Benefit Network.  It contained old link from DFAS, dated May 2008 that was replaced with a new page.  The old page provided guidance and information on the phase in period.  Can't find the exact post in Veterans Benefit Network any more, but I saved the DFAS page.  The link is http://militarypay.defense.gov/Portals/107/Documents/DoD_Concurrent_Receipt_Programs_May_2008.pdf . 

I want to thank everyone for their help.  I've learned a lot here and should have come here sooner.  I'll keep in touch and tell you if I'm paid according to the May 2008 guidance.

Added found actual post in Veterans Benefit Network  - Retro CRDP .

Dave

Edited by Dave P.
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