Possible prologue to a CUE during appeal process (would like to avoid if possible)

[OldJoe]

The VA (eBennies) finally acknowledged the issues with my back (40% degenerative arthritis) and without getting a IME/IMO/Nexus letter to do it.  It was/is a classic textbook example of what constitutes a CUE and what the DRO process is supposed to be able to fix without going before the board.  Proving that, once in a "BLUE MOON", the system does work the way it is supposed to.  (Could be classified as proof that: "Yes, Virginia there is a Santa Clause", "the Tooth Fairy does exist", "Jack Frost really does paint those wicked designs on the windows during winter", ...)

Is there anyway to find out how far back they are calculating the retro.  For the DRO review I requested all the way back to the original claim, 20% for the scoliosis (was at 10% for other issues) plus the vocational rehab I requested .  Getting the DRO to approve that part of my appeal with nothing more than the entries from my service records and others since leaving the service repeating the same condition leaves me thinking that they should be calculating it all the way back to 95/96 (no IME, IMO, or nexus letter submitted).

Right now, it is going through the "audit process" which, along with everything else, is backlogged and could take up to 6 months (puts me in the January 2019 ball park). 

• I don't expect the VA to simply roll over and pony up for that chunk of change  and want to start getting ready for the next round if it is possible. 
• Or, if I find out they are going all the way back, then that is another load off my mind and start planning for retrofitting the house for when it is harder to get around (unfortunately it is staring sooner than it should be).

Now, if it wasn't for the idiot Dr that did my C&P and couldn't find a connection between my knees and military this would almost be all behind me. (What part of secondary do you not understand!!! Find my happy place, find my happy place, ...)

I have already gotten the forms for dependents filled out in order to claim the retro for them while they were in college and plan on taking that in with me to the DAV at the end of this month.

[Vync]

On 8/20/2018 at 10:47 AM, OldJoe said:

Is there anyway to find out how far back they are calculating the retro

When I visited the DRO, I did the same thing as you: requested back to the effective date.

When they calculated my retro, they just put it in a table showing me the differences for each compensation date range. I then went back and looked up the difference of compensation amounts on the VA web site to make sure their math was solid.

For that length of time, they might issue staged ratings for different time periods depending on the level of disability.

When your mobility gets worse, your state might offer adaptability grants to retrofit your house. Some states do.

 

[broncovet]

You can figure out what the retro SHOULD be, but not what the retro "will" be.  Or, you can just wait for the decision and see what it "is".  

Effective dates are the Later of the date of claim or "facts found", with some exceptions.  So, to start, it sounds like you know the "date of claim", but you still need to find out the facts found, (which is the date the doc said you became disabled, or in the case of an increase, the date the doc said you got worse.  

Some exceptions are:  

A.  When you are seeking an increase.  

See quote below.

B.  Within a year of discharge.

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

• US Code
• Notes

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(a)

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, 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.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(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 paragraph is 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 readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

[OldJoe]

Thanks guys,

I got a feel the "effective date" for current (what I just received) rating for the back is going to be August for the 40%.  I don't believe there is going to be any wiggle room there. 

Though I would like to hope what Vync said comes true and they do "staged" increases, that would be nice and possibly mean larger sum.  But since blue is very unbecoming as a skin tone I am not going to hold my breath.  Just wish there was some way to find out if they acknowledged their "oops" and are going to correct it the way they should or if it is going to be like the every other story of where the VA stops significantly and obviously short of where they should have and I have to go through the next round of fighting for what I should have gotten.