Anyone ever rec'd Retroactive Disability? How

[WKresher]

I have another question under another topic but different... so new question.  

I had a serious injury in the Air Force while serving in the 80's.  I brushed it off at the time but it came back a few months later while stationed overseas during Desert Storm - the result was a complete temporary loss of the use of my left leg.  I was in the hospital for a month and have documented injuries to my lower spine.  When I was discharged some years later it didn't even occur to me to apply for disability as I was "young and tough" and disability was for people with 'serious' injuries or amputees etc.  Over the years I have had issues (periodically going to the doctor) but brushed them off and learned to deal with the discomfort as part of normal life.  My wife learned that I really should have applied for disability upon discharge and insisted I apply now (20+ later).  I was awarded a total of 30% but they state I can't get retroactive benefits because I didn't go in earlier.  Is that correct?  I'm wondering if a VA Attorney might be worth consulting?  We can get medical records for the visits that happened between discharge and now and the condition itself was well documented within my service records.  Thanks for any insights or suggestions you all may have.

As far as the injury, a b52 Bombay door was dropped on me and essentially bent me backwards at the waist, the back/leg issues that have always been there are increasing substantially as I get older and making it more and more difficult to do my job and day to day things.

 

 

[pwrslm]

When you were out-processing they gave you lecture about VA disability.  I dont remember mine, it was in 84. That's when they SHOULD have totally educated you about filing claims for whatever malady you had.

They dont back date claims. The condition you have  probably was compensable, but until you filed a claim, you are not entitled. Its like a drivers license. If you wait to get one till you are 30, it will not erase any driving w/o a license charges that you got stuck with. I never heard of a lawyer getting claims backdated when no previous claim existed. If it were possible, my back condition was well documented in 84 when I was discharged, so if it were possible, I would have done it without a question.

Like you, I didnt consider myself disabled, and the lousy job they did back then left me clueless until I did my own research in 2014.

Edited September 1, 2017 by pwrslm

[Berta]

Correct info from pwrslm.

"I was awarded a total of 30% but they state I can't get retroactive benefits because I didn't go in earlier.  Is that correct? "

I think they mean you didn't file the claim within one year after discharge.

Most claims that succeed get retro back to the date the claim was filed.

If the claim is filed within one year after discharge and succeeds, they will pay back to the day after the discharge.

[broncovet]

I have gotten retro, yes.  You get benefits back to the "effective date" VA determines.  The general rule for effective dates is that it is the later of the 

"facts found" or the date of claim.  There are only some special circumstances when you can get benefits "prior" to the date you applied.  The only special 

circumstances to get a date earlier than that applied is if:

a.  You applied within a year of discharge, and you can get an effective date to the date of discharge. 

b.   Certain presumptives may permit an EED.  

c.   In the case of an INCREASE, you may be able to get an earlier date.  Reading this may help:

38 U.S. Code § 5110 - Effective dates of awards

• US Code
• Notes

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(a)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this parag

s a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is reopened and thereafter allowed on the basis of