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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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SgtKidJoe

How\Where to file for Retroactive Back Pay for a claim

Question

I had someone review my claim for service related foot arthritis. My original claim was denied in 9/2014, saying it wasn't service connected. I filed again 3/2015 and again denied.

I supplied a copy of my TAD orders and medical records on 3/2017 and was granted 20%. However, this should have been back dated to 9/2014. 

So does anyone know where to file for the back pay? I was told there's a spot in eBenefits, but I have yet to find it, or in Vets.org?

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I dont know of any 'spot' in ebenefits about that.

If the VA finally awards a claim, that has been denied in the past, the only way to get backpay would be filing either a 38 CFR 3.156 claim or a CUE claim.

"I supplied a copy of my TAD orders and medical records on 3/2017 and was granted 20%".

If those denials referred to your SMRs and VA overlooked the TAD orders and medical records ( I assume they were inservice records) this is a basis for a CUE claim (Clear and unmistakable Error) and it is a violation of 38 CFR 4.6:

 

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of

Veterans Affairs

to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

I have had numerous issues with VA, and still have some pending-I think they violated this basic VA regulation in every single claim I had, until I appealed- then I got smart and started to use this reg against them under CUE.

Can you scan and attach here those rationales for those denials as well as the evidence list each denial used?

Cover your C file #, name, etc prior to scanning them-

If we can read the actual words of the VA in them, we can better advise whether this is a valid basis for CUE or 3.156 claim, or maybe even both.

Both CUE and 38 FR 3.156 is explained here under a hadit search.

However- to be a valid CUE the rating at time of those denials had to be ( or can be proven to be) at least at 10%. If no C & P exam was done ,the VA cannot prove it should not have been at least at 10%.

We need to know if the VA rated this at "0" NSC or at "0"% SC in the older denials.

 

 

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10 hours ago, Berta said:

I dont know of any 'spot' in ebenefits about that.

If the VA finally awards a claim, that has been denied in the past, the only way to get backpay would be filing either a 38 CFR 3.156 claim or a CUE claim.

"I supplied a copy of my TAD orders and medical records on 3/2017 and was granted 20%".

If those denials referred to your SMRs and VA overlooked the TAD orders and medical records ( I assume they were inservice records) this is a basis for a CUE claim (Clear and unmistakable Error) and it is a violation of 38 CFR 4.6:

 

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of

Veterans Affairs

to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

I have had numerous issues with VA, and still have some pending-I think they violated this basic VA regulation in every single claim I had, until I appealed- then I got smart and started to use this reg against them under CUE.

Can you scan and attach here those rationales for those denials as well as the evidence list each denial used?

Cover your C file #, name, etc prior to scanning them-

If we can read the actual words of the VA in them, we can better advise whether this is a valid basis for CUE or 3.156 claim, or maybe even both.

Both CUE and 38 FR 3.156 is explained here under a hadit search.

However- to be a valid CUE the rating at time of those denials had to be ( or can be proven to be) at least at 10%. If no C & P exam was done ,the VA cannot prove it should not have been at least at 10%.

We need to know if the VA rated this at "0" NSC or at "0"% SC in the older denials.

 

 

Berta:

As requested, from 9/2014 claim files, response on 3/2015

"6. Service connection for right foot arthritis.
Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.
While your service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present
in service. There was no continuity of symptoms from service to the present.

The evidence does not show that your disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection.

We received your medical evidence which discusses the symptoms of your medical condition; however, there was no evidence found relating your current diagnosis of right foot arthritis to
your treatment for right foot sprain during military service.

A disability which began in service or was caused by some event in service must be considered "chronic" before service connection can be granted. Although there is a record of treatment in service for right foot arthritis, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. Therefore, service connection for right foot arthritis is denied."

2017-03 Claim result:

Issue/Contention

degenerative arthritis, right foot previously rated under (DC 5284)

Percentage assigned

20%

Effective Date

Nov 21, 2016

1. We have assigned a 20 percent evaluation for your degenerative arthritis, right foot previously rated under (DC 5284) based on: 

-Extreme tenderness of plantar surfaces of the feet

-Indication of swelling on use

-Pain on manipulation of the feet, accentuated 

Additional symptom(s) include: Pain on manipulation of the feet

2. A higher evaluation of 30 percent is not warranted for acquired flat foot unless the evidence shows:

-Unilateral involvement with pronounced symptoms; marked pronation, extreme tenderness of plantar surfaces, of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances: or 

-Bilateral involvement with severe symptoms: objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities

3. The effective date of this grant is November 21, 2016. The date we received your reopened claim.

 

I'm not sure why they tied this to the plantar region. There is degenerative bone with significant 

All of his pain is in the mid foot. The pain is worse with activity and  improved with rest. He is an IT administrator for Windows. Right foot OA and insertional posterior tibialis tendonitis. 

 

XRay submitted evidence shows "The lateral view of the right foot shows moderate sclerosis and bone spurs of the mid foot.
There are no fractures or dislocations."

MRI (2018-02) results to be submitted: 

Alignment/ joints: There is moderate to severe degenerative change of the navicular and medial cuneiform

articulation with articular cartilage loss, joint space narrowing, subchondral sclerosis, subchondral cystic
change, and marginal osteophyte formation, best seen on the long axis images series 1101 and 1201 image
25 and sagittal images series 1301 and 40,101 image 9. This finding likely correlates to the area of clinical
concern marked by the patient at the medial midfoot. There is also similar appearing mild to moderate
osteoarthritis of the first tarsometatarsal joint. Mild to moderate osteoarthritis of the first
Metatarsal phalangeal joint with trace joint effusion is noted. No other significant degenerative change is
identified. Alignment of the foot is anatomic. The collateral ligaments and plantar plates of the metatarsal
phalangeal joints appear intact

 

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You should get back pay because of 38 CFR 3.156 (C). (New Service Records).  

You can appeal the effective date, by filing a NOD of the decision on the applicable form.  You should appeal this within a year, UNLESS you file a Cue, as Berta suggested AND its completed within a year in your favor.  

Dont let the one year period pass without filing a NOD on the effective date.  

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From what I am reading they denied your original claim and your appeal because your condition was not chronic.  They admit you had it on active duty, but they say it was not chronic, and denied you.

Then you re-opened your claim with new evidence.  And at this time and maybe after a C&P, they said it was chronic and therefore ratable.

I do know, that for a "re-open", they only go back to the date of the re-open.  And they only re-open with new evidence.

So, if it was a re-open, then the date is correct.

If this latest rating was an appeal (not the original denied appeal) then there is that.  If you submitted a NOD within a year of the denial then there is that also,

I won a re-open and it only went back to the date of the re-open claim,

Hamslice

 

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The reason they denied in the past was a solid reason-

what did they re-open the claim with ( meaning what evidence did they have for the SC rating that they did not have for the past denials ( or had ,but ignored)

https://www.veteranslawblog.org/2-times-that-veterans-should-argue-for-an-earlier-effective-date/

This above link is an article by Vet lawyer Chris Attig who is also a hadit member-

and both CUE and 38 CFR 3.156 is discussed here at hadit under a search-

By this VA statement:

"1. We have assigned a 20 percent evaluation for your degenerative arthritis, right foot previously rated under (DC 5284) do they mean they "previously rated" the condition under DC 5284 but gave it a "0" % as SC , rather than NSC?"

I hoe you have your STRs and a complete copy of your C file and any medical records, to include any private treatment records for this disability.

Hamslice said:

."  And at this time and maybe after a C&P, they said it was chronic and therefore ratable".

 

It becomes very difficult to succeed on claims for retro that may well have their origin in service, yet were not subsequently treated medically.

As you said:

"I'm not sure why they tied this to the plantar region. There is degenerative bone with significant "

and then you quote from the C & P:

 

"All of his pain is in the mid foot. The pain is worse with activity and  improved with rest. He is an IT administrator for Windows. Right foot OA and insertional posterior tibialis tendonitis. 

 

XRay submitted evidence shows "The lateral view of the right foot shows moderate sclerosis and bone spurs of the mid foot.
There are no fractures or dislocations."

I am not sure that is the right diagnostic code- hopefully other will chime in-

 "We have assigned a 20 percent evaluation for your degenerative arthritis, right foot previously rated under (DC 5284) based on: " etc 

but the DC code for degenerative arthritis is 5003:

https://cck-law.com/news/arthritis-va-disability-claim/

Still the rating would probably be the same.

 

This is the reguation for 38 CFR 3.156 which, as Broncovet sad, might well be what you need to try to get a better EED.

https://www.law.cornell.edu/cfr/text/38/3.156

The problem as I see this is- if the rating was "0" at time of past denial, the VA might still consider that as the valid rating- and therefore no retro amount due to you- --------

still something was missing when they denied, that you apparently supplied to them-as below ***

and the fact is , this was a disability that was chronic from service-

And this indicates that it Might have been a ratable disability when you were discharged:

***"I supplied a copy of my TAD orders and medical records on 3/2017 and was granted 20%".

I am a civilian- what is a TAD order?

Can you tell us what it says?

Seems to me they should have had that included with your STRs etc, when you filed the first claim that was denied.

That might be the key evidence for a  valid 38 CFR 3.156 claim.

 

 

 

 

 

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