VA Disability Back Pay

[colarguns]

Hi,

 

Thank you for taking the time to look into my situation.  I will try to keep this on point as best as possible.  I was discharged medically (USMC) in January 1989.  The medical board gave me a 10% service connected disability (compensable).  After 6 months of being home, I received a follow up letter from Tampa VA.  I attended this follow up, and the doctor who looked at me, said “oh you’re fine, I will bring that down to 0%”!!  I was furious at how I was played by the system, so I began fighting the system (Congress, 2nd Marine Division, White House, you name it). 

 

I received a letter dated July 1992 from a VA Adjudication Officer, stating that they have reviewed by medical board examination from 1988, and found that I met the criteria, and therefore, I was given back the 10% compensable disability.  I do not recall filing a claim during any of this time, and I believe all of my calls and mails (no access to email at time), were effective in resolving this.

 

I never received a dime from the VA for anything.  I have kept this letter all of these years, and just a few weeks ago, I found this in my strong box stored in my warehouse.  After reading it, I decided to hit the trail again.  I took it to the DAV locally, and he called the VA in my presence.  After the call, he said that they confirmed that my disability was approved in May 1991, and stopped in March 1994.  These dates were confusing, as my VA letter which originally confirmed the disability, was dated July 1992.  As for why the disability ended in 1994, I have no idea.  I have no records of appeals, denials, or anything of the sort.

 

The DAV Officer said that according to his conversation, the VA would owe me from the date of May 1991 to March 1994, but I would have to fill out a Form 21-4138 (Statement in Support of Claim).  On this form, all he said to write was (Statement that I never received compensation, and that I have no record of appeals).

 

This is where my questions and concerns come in.  If the Marine Corps medical review board determined this 10% disability in 1988, shouldn’t I be compensated from that date to the present?  Again, I have no other records, other than the letter from VA Adjudication Officer dated July 1992.  Overall, it is easy to see the roller coaster of events:

 

1988 - Medical Review Board approved discharge based on injury rating of 10%

             (Never received a dime of compensation)

 

1989 – Tampa VA follow up visit on injury

(Doctor said I was fine, and dropped the 10% to 0%)

 

1991 – Apparent approval date conveyed by VA and DAV

(I have no record of claim filed, other than memory of my calling and mailing everyone in the command structure to slap the VA for reducing my disability 6 months after my discharge)

 

1992 – Received letter from VA Adjudication Officer awarding a compensable 10% disability

(based on medical review board findings in 1988)

 

1994 – According to feedback from DAV, the VA conveyed that I was awarded the 10% compensable disability in May 1991, but due to appeal, this was brought back to 0%.

 

So if you look at the roller coaster of being approved, denied, approved, approved, denied, it is pure silliness.  I find it hard to trust even the DAV, and I could be very wrong with that feeling, but because of how screwed up the VA is, I am worried that the DAV officer may be poorly directing the filling out of this Form 21-4138.  Do you have any advice on what I should write on this form?  I am trying to stay away from bringing an attorney into this, because they will take 20-30% of whatever is due.  I have already been told that they owe me from 1991 to 1994, but my case is I feel they owe me from date of discharge to the present.  Any helpful information you can provide on how best to fill out this form, would be greatly appreciated.  Thank you.

[vern2]

I do not trust the DAV. If I had trusted the DAV, I would be at 0% compensation, instead of 100% SC. It appears that VA appealed your 10% rating a 2nd time and brought this back to 0%. You need to get copy of your VA claim File and proceed from there. You may be owed compensation back to 1988.  If the VA appealed your 10% rating from 1991 in 1994, there should be some record in you C file. When you get your C file and review it, then post again on forum with any questions. Yes, you may want to file the 21-4138, but not until you see what is in C file. This is just my opinion.

[colarguns]

53 minutes ago, vern2 said:

I do not trust the DAV. If I had trusted the DAV, I would be at 0% compensation, instead of 100% SC. It appears that VA appealed your 10% rating a 2nd time and brought this back to 0%. You need to get copy of your VA claim File and proceed from there. You may be owed compensation back to 1988.  If the VA appealed your 10% rating from 1991 in 1994, there should be some record in you C file. When you get your C file and review it, then post again on forum with any questions. Yes, you may want to file the 21-4138, but not until you see what is in C file. This is just my opinion.

Than you sir.  I am going through a FOIA request through the VA.  There may be a different approach, but that's where I am.  I also went to the va release of information office in Tampa, and requested (all) records since my inception.  He said it would be placed on a cd and mailed to me.  I do appreciate your help, and glad to know you got what you deserved on your rating

[Gastone]

Your Timeline seems to be missing actual VA Comp Claims Filings. Did you ever file an actual VA Comp Claim for the Disability that got you Discharged in 01/1989?

Do you still have the Condition (Mental or Physical?) that got you a Medical Discharge? Why the apparent lack of follow-up, 05/94 to present?

If you have a C-File located at your VARO, filing the FOIA, will get the CD in about 12 - 13 months.

You could talk to a VA Attorney or "for Fee" Claims Agent, you just can't hire them until you have an  Appealable Decision. If you signed a "POA" Power of Attorney with DAV or any of the other VSO's, a VSR should be able to access your C-File on-line and copy any of its contents. Certainly, beats waiting a year for the FOIA CD.

If you've been treated at your local VMC Hospital, visit the Medical Record Dept (in the basement) and do another FOIA for your VA Med Records. You should be able to get a searchable CD within 20 min, unless they're extremely busy.

During your next visit to the VMC, check in with the Vet Learning Center on the 1st Floor, sign up for MHV (My Healthy Vet) on-line Access and E-Benefits Access. You could also do it at your RO.

Semper Fi

[broncovet]

The important thing is that you have documentation of all of this.   My advice, since it sounds like you are currently "zero percent" service connected, would be to apply again for that disability in the letter and any other disabilities that you think are service connected.    

If awarded, then you could seek an earlier effective date by appealing the effective date back to 1988.  I cant speak for 1988, but nowadays, the VA has a particular order.  They award Service connection, then disabiity percentage and last is the effective date.    I really dont think you will likely get back pay any other way.  The VA does not have good records NOW, let alone back in 1989, and nothing usually happens unless its documented.  

There may be a stautute of limitations here.  If someone owed you money in 1989, then you should ask for that money then, and not in 2017.  This said, Vets do get back pay sometimes for more than 7 years, provided they have a documented disability and a documented effective date longer than 7 years ago.  It is really not all that unusual for Va to take longer than 7 years to process a claim, especially with appeals.  Im currently in appeals for a 2002 claim and, yes, Im represented by an attorney and 6000 dollars of attorney fees have been paid by EAJA.  I wont ever have to pay those, unless I get retro above 30,000 dollars.  I will be quite happey to pay my attorney 20 percent of any retro over 30,000 USD.  

I agree you probably dont always want to rely on DAV's interpretation, but I do agree that is "one interpretation" of your case, but its not the most beneficial to you.  

You have a right to dispute any reduction in disability percentage, but, if you do not do so, it becomes final in a year.  So, by 1990, your appeal period for your disability reduction ended.   To over come your failure to file a NOD, you would need to "raise the standard of review to the CUE level".   That is, you would have to prove clear unmistakable error in 1989.  Without looking at your file, I have no idea how you would prove Cue from a doctors reoport in 1994.  

As I explained, your best shot is to re apply.  Then if awarded, and you are unhappy with the effective date to appeal it within a year.  I do agree the award letter is compelling..others may agree and you may just get a (new) award letter based on that.  Maybe.  Often they "continue" a previous rating, and you may get some kind of letter for that.  

All of this said, you are likely better off to at least take your paper work to an experienced Veterans lawyer, and see what they say.  They will give you advice for free.  They will review your file and decide whether or not to offer you their services.  If the attorney does offer his or her services, then ask them why they think your case is good (or bad), and what they would plan on doing to get you your retro.  

Then you can decide whether to hire the attorney or not.  A list of attorney's who practice Veterans law are here: https://vetadvocates.org/welcome/find-an-attorney/

As far as paying the attorney, you wont have to pay until you get paid.  Also, if this goes to the CAVC (likely) then EAJA act reguraly awards EAJA fees to VEts who win.  This would mean you would have little or no attorney fees, as EAJA would pay them.  

Edited July 6, 2017 by broncovet

[colarguns]

On 7/6/2017 at 7:55 AM, Gastone said:

Your Timeline seems to be missing actual VA Comp Claims Filings. Did you ever file an actual VA Comp Claim for the Disability that got you Discharged in 01/1989?

Do you still have the Condition (Mental or Physical?) that got you a Medical Discharge? Why the apparent lack of follow-up, 05/94 to present?

If you have a C-File located at your VARO, filing the FOIA, will get the CD in about 12 - 13 months.

You could talk to a VA Attorney or "for Fee" Claims Agent, you just can't hire them until you have an  Appealable Decision. If you signed a "POA" Power of Attorney with DAV or any of the other VSO's, a VSR should be able to access your C-File on-line and copy any of its contents. Certainly, beats waiting a year for the FOIA CD.

If you've been treated at your local VMC Hospital, visit the Medical Record Dept (in the basement) and do another FOIA for your VA Med Records. You should be able to get a searchable CD within 20 min, unless they're extremely busy.

During your next visit to the VMC, check in with the Vet Learning Center on the 1st Floor, sign up for MHV (My Healthy Vet) on-line Access and E-Benefits Access. You could also do it at your RO.

Semper Fi

I apologize for not getting back much sooner, we recently lost a family member.  To answer your question on whether or not I filed a VA Comp Claim, the answer is no.  Between 1989 and 1991, I was fighting the system from all angles, as I was outraged over their scam, which is what it was.  The injury is real, but how it was handled was a scam on the Veteran.  Do I still have this condition?  Yes, and it has worsened over the years.  Why the long wait?  I surrendered back in 1991-1992 time frame, as I was pure tired of the nonsense.  I requested (all) my records from the ROI office in the basement of the Tampa VA, and the guy said it will be mailed to me on a CD.  The E-benefits site, I have had premium membership for years, but they do not go back as far as I need.  They stop at year 2002.  Thanks for your input, is greatly appreciated.

[colarguns]

On 7/6/2017 at 8:54 AM, broncovet said:

The important thing is that you have documentation of all of this.   My advice, since it sounds like you are currently "zero percent" service connected, would be to apply again for that disability in the letter and any other disabilities that you think are service connected.    

If awarded, then you could seek an earlier effective date by appealing the effective date back to 1988.  I cant speak for 1988, but nowadays, the VA has a particular order.  They award Service connection, then disabiity percentage and last is the effective date.    I really dont think you will likely get back pay any other way.  The VA does not have good records NOW, let alone back in 1989, and nothing usually happens unless its documented.  

There may be a stautute of limitations here.  If someone owed you money in 1989, then you should ask for that money then, and not in 2017.  This said, Vets do get back pay sometimes for more than 7 years, provided they have a documented disability and a documented effective date longer than 7 years ago.  It is really not all that unusual for Va to take longer than 7 years to process a claim, especially with appeals.  Im currently in appeals for a 2002 claim and, yes, Im represented by an attorney and 6000 dollars of attorney fees have been paid by EAJA.  I wont ever have to pay those, unless I get retro above 30,000 dollars.  I will be quite happey to pay my attorney 20 percent of any retro over 30,000 USD.  

I agree you probably dont always want to rely on DAV's interpretation, but I do agree that is "one interpretation" of your case, but its not the most beneficial to you.  

You have a right to dispute any reduction in disability percentage, but, if you do not do so, it becomes final in a year.  So, by 1990, your appeal period for your disability reduction ended.   To over come your failure to file a NOD, you would need to "raise the standard of review to the CUE level".   That is, you would have to prove clear unmistakable error in 1989.  Without looking at your file, I have no idea how you would prove Cue from a doctors reoport in 1994.  

As I explained, your best shot is to re apply.  Then if awarded, and you are unhappy with the effective date to appeal it within a year.  I do agree the award letter is compelling..others may agree and you may just get a (new) award letter based on that.  Maybe.  Often they "continue" a previous rating, and you may get some kind of letter for that.  

All of this said, you are likely better off to at least take your paper work to an experienced Veterans lawyer, and see what they say.  They will give you advice for free.  They will review your file and decide whether or not to offer you their services.  If the attorney does offer his or her services, then ask them why they think your case is good (or bad), and what they would plan on doing to get you your retro.  

Then you can decide whether to hire the attorney or not.  A list of attorney's who practice Veterans law are here: https://vetadvocates.org/welcome/find-an-attorney/

As far as paying the attorney, you wont have to pay until you get paid.  Also, if this goes to the CAVC (likely) then EAJA act reguraly awards EAJA fees to VEts who win.  This would mean you would have little or no attorney fees, as EAJA would pay them.  

Master Chief, Thank you so much for your input!  Sounds like you have had your experience for sure.  Please read my earlier response as to why I am late to respond.  I do apologize.  As far as attorneys go, I have had 3 thus far tell me that they cannot do anything until they see a letter of denial from the VA.  So currently, I am having to go about obtaining my C-File, and I was just told by the VA today, that even if I filed this request via the FOIA, it would still take roughly a year or more.  That is just sad.  I will look into the Vet Advocates, as you provided, to see what I can there.  Thank you very much for your input, and if you or any other Veteran needs anything out of central Florida, just let me know.