Supproing data recognized by one VA Comp, but another

[john.penasack]

My USAF medical records were lost or destroyed and I was initially denied any compensation. I retired in June 1981 with 20 years service. In June 2018 I found that the VA would accept a 4 page signed statement from my spouse, of 57 years, describing what family life was like living with back pain which started in June 1968, while on active duty.  Within 2 weeks, I was awarded 80% disability, with 14 medical problems identified. Monthly disability checks started. I then submitted a claim for  37 years of.retroactive pay,  and was denied because that 4 page statement by wife was considered "informal". 

I have no idea if there are 2 or more different, independent, VA Compensation Organizations, because the VA denials do not identify which VA Office made the decision, where the office is geographically located, who signed the denial, where I could call, etc.

I submitted 2 NDO's citing the fact that I have been granted an 80% disability and initial monthly benefits based on the "formal" statement of my spouse and asking why my VA Compensation is not consistent. NO ANSWER.

I have solicited the VA IG, Senator Hassan (NH), House Armed Services Chairman,  and all have failed me. I have been exploring an age discrimination action, but that requires a lawyer and I cannot afford their extravagant fees.

Anyone have any advice

[broncovet]

There are 2 keys to winning benefits at VA:

1.  Evidence

2.  Persistence.  

     You really need both of these.  Persistence, without evidence wont work, and evidence without persistence rarely works.  

    You may have to contact more than one attorney (persistence).  That attorney may not specialize in your type of claim, or he may be too busy, or, he may feel your chances of winning are not that great.  The next attorney, may have an entirely different viewpoint.  Did you notice the difference of viewpoints even between us Veteran advocates?  Well, Attorneys who represent Vets also have widely varying viewpoints.  

     I had an attorney represent me about 3 years ago.  We won benefits, but not at the effective date I thought was correct.  Julie Glover, of Glover Luck, won me benefits, but declined to represent me in the effective date appeal.  However, since I was persisitent, I hired Chris Attig to appeal the effective date.  I have not yet seen the results of the effective date appeal, but probably will have an answer by spring.  

     The effective date laws are very complex..in my opinion the most complex of all.   You see, there are many exceptions to the "general" effective date rule that your effective date will be the later of the facts found, or date you applied.  Some exceptions are:

1.  Liberalizing regulations.  If VA changes the law(s), you can fight to get the "more liberal" of the two laws.  

2.  In case of an "increase".  See regulation quote, below.  

3.  When the Veteran applies within a year of discharge from service.  

More, here:

Quote

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.

 

 

[broncovet]

The regulations I posted, above, dont even include those relating to New and material evidence, 38 cfr 3.156 b or 38 cfr 3.156 C, and they dont include applications to revise a decision based on Clear Unmistakable Error.  

 

[Carl the Engineer]

john,

From what I am reading, and I understand your contention on your wife's statement, however, that is not how the VA comp works.

As an example,  say you have sleep apnea.

You claimed sleep apnea in 2017 and because of your wife's statement, stating that you had sleep apnea since you were in service 30 some years ago and the VA grants you service connection at 80% with a start date of 2017.

Which would be correct.

Your (as an example) contention is that since the VA excepted you wife's statement that you had sleep apnea and you got 80%, then the VA should recognize the same evidence in giveing you retro back 30 some years as stated in the wife's statement accepted as true evidence in your claim.

This would be incorrect.  The VA will only go back to when you first make the claim.

Now, if you had gone to the VA at an earlier date and claim sleep apnea or even something that could be attributed to sleep apnea, they you would have a path.

The most important question is, when did you first claim your 80% disability?

That will tell the tale,

Hamslice

Not enough information to conclude what is going on.

 

Edited December 16, 2018 by Hamslice

[john.penasack]

Hamslice, you obviously have much more experience dealing with the VA than I have and certainly have much more understanding of the intricacies of the age-old, sacred, self-protecting, selfish roles the VA has, but, just like the IRS, FDA, DOD,  and most US government agencies, including Congress, they devise rules and laws which focus on their self interests first. 

I should have started this reply (or probably not even started it at all), by explaining that I am writing this at 3:17 in morning. I cannot sleep because of leg pain caused by some anomaly in my nerve system,an unsolvable medical  problem. I have 5 TENS  devices I purchased with my own money, but they cannot operate for more than an hour due to an FDA rule,law, edict or whatever they call it. If the TENS manufacturers increased the operating time, the would suffer financially. The FDA know I learned, over 25 years ago, 

[john.penasack]

The FDA established that for legal protection only, not because they know anything about nerve system anomalies.

I learned, over 25 years ago, that when physical pain overtakes me, I must try to over-ride it with an overwhelming mental preoccupation: thus this response. One of the reasons I devote most of my time preparing current geopolitics classes for seniors (no financial gain for me), is to focus on mental activity to offset my almost unbearable physical pain. Occupying my mind, for my benefit and others, is keeping me alive, at least for now.

My qest for compensation back pay is to obtain funds to ameliorate my handicaps.I will attempt gaining NOVA support, but am realistic to know that overcoming the overwhelming bureaucratic VA rules is probably not achievable. My 'bailout" is an option.

[Berta]

"By the way, I was told by that representative, that the VA IG does not perform any internal audits of VA processes".

Maybe the 'representative' does not know that all OIG investigations are online.

OIG however does not want to get involved with individual claims issues and can only make recommendations to VA entities to resolve their problems.

However I have filed complaints with the OIG but the best bet is to file a complant with the OAWB-

Office of Acountability and Whistle Blower protection.I have a complaint pending with them.

"I have solicited the VA IG, Senator Hassan (NH), House Armed Services Chairman,  and all have failed me. I have been exploring an age discrimination action, but that requires a lawyer and I cannot afford their extravagant fees."

Contact the Sub Committee on Memorials and Disability-under H or S VAC web site.

They accepted my testimony into the record for the Shreddergate hearing.

Also I used for my main complaint to the OAWB- a letter I had set to the H Vets Affairs Committee years ago- with no response at all. My complaint is mainly against the Office of General Counsel, and the H VAC letter and my H VAC Sub Comitte testimony supports it, Also I sent them 3 GAO reports and other significant stuff- 

You need to narrow down your complaint however to whatever you  believe the VA did wrong, with evidence.

Age discrimination?

I dont understand the basis- however I did all the legal work for my husband against a federal contrator, when the ADA became law.(Americans with Disabilites Act.) The ADA EEOC lawyer called him but he was in Day treatment at the local VA and the lawyer asked me who prepared the complaint, and when  said I did, he asked if I was a lawyer.The evidence I had was from over a 4 year period and quite extensive.This all had involved 17 prior complaints to DOL under the Vietnam Veterans Readjustment Act, I had  prepared for him with 17 responses that the contractor had not discriminated.

A few months after filing the ADA case, their lawyer called me, to tell me my husband had won what he was sure had been the very first ADA case filed in NY.( I am sure too-I waited on the post office steps for the PO to open on the frst day the ADA became law, to send it.

The federal contracftor had to pay him restitution for the discrimination.

The ADA lawyer me I had got them many times in the 17 DOL complaints- but they did nothing- the Vietnam vets readjustment and rehabilitation Acts were just a crock of crap- but Vietnam vets thought they were laws with teeth.Some of my evidence for discriminatiion came from the VA under multiple FOIAs I sent out. The VA had information on the hiring practices as to disabled vets , from every federal contractor in the US. That evidence was superb.

If you are willing to do the legal leg work, you might not need a lawyer. EEOC has info on the net about Age discrmination.It just cost me copy fees and mailing fees to file the ADA case.

But discrimination cases dont work against the VA claims system.

They do work against the VA in hiring situations.Been there ,done that for my husband too.

I told the director of the local VAMC that would be my next move ( EEOC) ,showed him the evidence I had, and within 20 minutes my husband was hired by the VA, and within the same day their personnel director was fired.

Your issue seems very complex- but you seem very willing to fight back..

That is what it takes....and Evidence is Everything,so leave no stone unturned.

 

.

 

 

 

 

Edited December 16, 2018 by Berta