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Marina

What are the REAL rules for retroactive pay?

Question

I have been searching all over the internet and there seem to be many conflicting claims.

Here's what my situation looks like.

I have developed lower back pain while enlisted and got 20% disability pay as they claimed it was due to scoliosis.

That was 7 years ago.

Since then I have not had a single day without constant back pain. I can't focus on schoolwork because I can't get comfortable. It takes me at least an hour to fall asleep because I keep trying to find a good position.

I have been going to the VA and trying to find some kind of treatment periodically for the past 7 years, but all they would ever do is take more x-rays, tell me there's nothing wrong with me, and send me to do physical therapy, which never helped.

Now, finally, I was able to get MRI done and it turned out that I have advanced degenerative disk disorder. My primary care doctor said that it looks really bad as it has been allowed to progress untreated and she is certain that it is service related.

I'm really pissed off now because I've been trying to get to the source of my back pain all these years and the VA was as unhelpful as can be.

Now I'm wondering if I could get any back pay on this.

Some places I read that you can only get back paid from the point you file a claim, but then there are other cases, such as if I am able to prove that my condition has worsened BEFORE I filed a claim, that I could get retroactive pay from that point. I have certainly visited the VA plenty of times between my discharge and now as my back has been getting progressively worse. I'm not sure if that's something that can be seen directly from x-rays though, but there are plenty of records of me visiting VA for this particular issue. And if MRI shows that the condition is in advanced stages, then obviously it has been getting worse and I feel like maybe I could use that and the fact that I have been seeking out help previously to get at least some retroactive pay.

Do you guys have any advice on how to go about this?

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5 answers to this question

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Yes.  Start by applying YESTERDAY, if not sooner.  

There are very few exceptions when you can get an effective date "prior to the date you applied".  

The VA "assumes" when you go to the doc, you are seeking TREATMENT not benefits, UNLESS you have applied for that malady.  

In the event of an INCREASE, you can sometimes get up to a year backpay.  

However, dont put the "cart before the horse".  The VA processes stuff in THIS order:

1 . Service connection

2.  disability percentage.

3 . Effective dates.  

      Talking about effective dates before you have been SC and gotten a disability percentage never works.  

Here are the effective date rules:

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

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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.
end of regulation quote.
    My advice is to apply for new sc, and apply for an increase in scoliosis.  Dont burn down either bridge until after you cross them.  
Next, dispute any denials or lowballs.  
Lastly dispute the effective date.  
      Of course, we want these to happen all at once, the VA prefers if it takes you 10 to 20 years.  Guess who will get their way?  
      I think your only hope might be 38 cfr 3.156 b or c,  PROVIDED THAT you sent VA "new and material evidence" within 1 year of your 20 percent rating.  Im gonna tell you right now:  You will need an attorney to eventually get your 7 years backpay.  But dont think about that until you get a decision on your new claim and claim for increase.  
       

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I'd like to add that the VA will usually try to pull a fast one and only back date to the last C&P exam. So if you're denied, appeal, and then win with a 2nd C&P. They might try to only backdate to the latest C&P.  I went through this and am currently waiting on my new backpay. I am no expert and can only give you my experience.

DEC-2009 filed for ptsd

NOV-2010 granted 70%

DEC-2010 filed for increase to 100% or IU

2011-2012 denied and hired a lawyer

FEB-2016 granted 100% P&T (given backdate to last C&P; appealed for better backdate)

OCT-2018 BVA Grant for correct backpay and awarded IU from 2012 to 2016. (waiting on backpay)

 

My best advice to you is this... Be 100% honest and don't overstate your problems. The VA has a nose for this and it will only hurt you. Do NOT listen to the advice you'll read elsewhere about how to dress, act, what to say to get your way. The last thing you want is for the people helping, judging your condition to think is you're faking it. The first C&P exam I had for the increase is the reason I got denied an increase. I was totally honest and the C&P examiner stated I was still 70% and did not warrant an increase because of my ability to play 'challenging video games,' and my ability to use a computer. So I must be able to hold a job. The examiner was a VA employee and seemed bent on denying veterans. So I guess what i'm trying to say is that it matters how you get to your correct rating.

10 minutes ago, Marina said:

@broncovet Thanks for the fast reply!
That's really helpful. Also, wow, that's a lot of confusing legal speak.

Unfortunately, I'm out of state right now, but I do plan on visiting VSO (is that what they're called?) immediately when I get back. I don't think this process can be started over the phone, can it? I went on some va benefits website and started to apply for increase because I thought that's what it would be, but then I wasn't sure if it would be considered as increase in scoliosis pay, or a completely separate new thing. So at least now there's an intent to file open I guess?

And it gives me hope that you say with attorney I could get 7 year back eventually. I'm not in particular hurry at 31. But also, at 31 it's kinda ridiculous to have this condition 😞

 

You can lock in your backdate by opening a new claim on e-ben with a computer anytime.

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@broncovet Thanks for the fast reply!
That's really helpful. Also, wow, that's a lot of confusing legal speak.

Unfortunately, I'm out of state right now, but I do plan on visiting VSO (is that what they're called?) immediately when I get back. I don't think this process can be started over the phone, can it? I went on some va benefits website and started to apply for increase because I thought that's what it would be, but then I wasn't sure if it would be considered as increase in scoliosis pay, or a completely separate new thing. So at least now there's an intent to file open I guess?

And it gives me hope that you say with attorney I could get 7 year back eventually. I'm not in particular hurry at 31. But also, at 31 it's kinda ridiculous to have this condition 😞

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13 minutes ago, 11cvolley said:

My best advice to you is this... Be 100% honest and don't overstate your problems.

Oh, I have the opposite problem, actually. I always severely understate my problems, like "be a big girl and suck it up". I was volunteering for this anti depression meds study one time and they kept having to remind me to actually say have I feel instead of always being like "oh, I'm great" because that's not very helpful for tracking improvements...

On that note, they don't comp you for depression, do they? I've also started on medication while in service and still on it, thought in the later years it probably has more to do with grad school. And they never put it on my first claim anyways. But I hear people claim PTSD all the time. I couldn't fake it if I tried though...

Edited by Marina

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39 minutes ago, Marina said:

Oh, I have the opposite problem, actually. I always severely understate my problems, like "be a big girl and suck it up". I was volunteering for this anti depression meds study one time and they kept having to remind me to actually say have I feel instead of always being like "oh, I'm great" because that's not very helpful for tracking improvements...

On that note, they don't comp you for depression, do they? I've also started on medication while in service and still on it, thought in the later years it probably has more to do with grad school. And they never put it on my first claim anyways. But I hear people claim PTSD all the time. I couldn't fake it if I tried though...

You can be rated for multiple mental health conditions but only receive comp for the highest of them. If you have a family member that knows your condition. Take them with you to an appoint, C&P. They can tell the doctor how your condition really affects you and how severe it is in their eyes.

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