Can someone help explain my potential retro pay situation?

[chomperjones]

back in 2011 I filed for a plethora of disabilities that i received during my time in the air force as a load master. I was given an 80% rating.

One of the claims was for depression an ptsd. However, I missed that c&p appt (i forget everything) and i obviously was not given a rating.

However, I was sent a letter that says:

"You were denied service connection for depression/anxiety/stress because you did not report for the scheduled exam in order to determine if the current disability began on active duty and to obtain sufficient information for evaluation of the disability. Although there is a record of treatment in service for anxiety/depression/stress, no permanent residual or chronic subject to service connection is shown by the service medical records or demonstrated by evidence following the service."

Now this was sent to me in 2011. Since then ive received a ton of treatment but ive also have had some unfortunate events happen as a result of the depression, anxiety, anger etc (jail, a stint at the mental health clinic, even a broken hand twice on two separate occasions on 2 separate faces, and  few more incidents.  i am working so hard on controlling my frustrations with the world and i am taking my meds and getting counseling - i hate living like this because i physically cant control it. And i was never like that prior to 06' my join date).

so my question is what exactly does that quote from the va mean? does it mean that they recognize i was treated for depression during active duty but due to me missing the appointment, they need more information?

And if i were to file a claim for depression and ptsd - and i were to receive the 80% I need in order to be rated 100%, how would the back pay work? Would the date go bak to my initial 2011 date? Or would they back pay me from the current date of filing? 

Sorry for the long post - thanks for the help.

Also am i correct in saying that they would only be paying the difference between the 80% pay and the 100% pay right??

[broncovet]

You had a year to appeal the denial of the 2011 depression, and, since you did not file a NOD within a year, things are much more difficult fo you to get benefits back to 2011.  

There are 2 major ways of getting an effective date (assuming you get benefits for depression) and they are Filing a CUE, and filing new and material evidence under 38 CFR 3.156.  

You would first want to review your file, and see if there are CUE errrors which could result in backpay.  It might be a good idea for you to take your file to an attorney to see if he or she could find a Cue, 3.156, or other reasons that would result in backpay.  

It would be worth a shot, but we can not make that determination without a review of your file.  

Failing to show up for an exam, however, does not help you.  And not filing  a NOD within a year is not in your best interest either.  

Still, all may not be lost.  For example, VA is required to send you notice of your appeal rights.  If they did not, your appeal period could be tolled and your claim still pending.  

[chomperjones]

1 hour ago, broncovet said:

You had a year to appeal the denial of the 2011 depression, and, since you did not file a NOD within a year, things are much more difficult fo you to get benefits back to 2011.  

There are 2 major ways of getting an effective date (assuming you get benefits for depression) and they are Filing a CUE, and filing new and material evidence under 38 CFR 3.156.  

You would first want to review your file, and see if there are CUE errrors which could result in backpay.  It might be a good idea for you to take your file to an attorney to see if he or she could find a Cue, 3.156, or other reasons that would result in backpay.  

It would be worth a shot, but we can not make that determination without a review of your file.  

Failing to show up for an exam, however, does not help you.  And not filing  a NOD within a year is not in your best interest either.  

Still, all may not be lost.  For example, VA is required to send you notice of your appeal rights.  If they did not, your appeal period could be tolled and your claim still pending.  

Ok that makes sense. now with that being said, lets say i file a totally  new claim for depression with today being being my start date... i should be fine to do that right? Basically retro pay would be out of the picture. 

in other words im asking if i will have any problems starting a new claim? and if that old claim would hurt me in any way. 

Thanks again for the help. 

 

[broncovet]

You dont have anything to lose by filing a new claim.  Go ahead.  If you get awarded, then you can always appeal the effective date, but you will still have the hurdles I already mentioned.  

 

[chomperjones]

Yea, i just read the rules and found that if you reopen a case, the effective date WILL NOT be the date of the original date. Instead it will be the date you reopen the case, So in this case i might as well just start a completely new case and go from there. Thank you. for the help and information.

[Buck52]

 This is true I agree when a Veteran reopens his claim and is out of the appeal date usually the EED  is the date he reopened his/her claim.

However there are special Effective dates – When considering your options with reopening and/or appeal, it is vital that you know the impact of all options on the effective date of your claim.

If you eventually win an award, or an increase in your award, the award will be backdated to the effective date of your claim.

The effective date is usually the date you filed the current claim (with some exceptions that allow the award to go back further).

The distinction could cost you tens of thousands of dollars, depending on the award and the time different from your original claim to the reopened claim.

Reopening a claim that was denied

In general, when VA disability claims are denied, a veteran can always reopen a claim with “new and material” evidence. This applies when you are addressing the same condition.

“New” evidence is information not previously considered by the VA. “Material” evidence relates to an unestablished fact necessary to the claim.

If the denial was based on lack of a service connection, then witness statements or other evidence can help resolve that question; of the denial was based on your condition, then new medical evidence or opinions may help.

There is little evidence that, given the choice, reopening a case rather than appealing it will improve your chances of approval, or your level of award. However, each case is unique and the distinctions can be highly confusing. You can often request a free consultation with an experienced attorney to help you understand the options.

[Tyr]

You have close to zero chance of getting a retro back to then.  Very very close to zero.

 

In your situation, it doesn't sound like the old claim will hurt you or affect you in any way now.

 

File a new claim, go to exams.