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

[SgtKidJoe]

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?

[SgtKidJoe]

Family Dr IMO

 

[broncovet]

This "effective date" is Nov. 21, 2016, but when was the decision?  Here is the deal.

This decision says you "reopened" the claim on Nov. 21, 2016.  This meant you sent in New and material evidence, under 38 CFR 3.156 C (new service records) or 38 CFR 3.156 B (pending claim).  

The result turns on whether it was a 3.156 C or 3.156 B, and here is why:

If VA cant find your service records, and makes a faulty decision, and they later "find" them, then you get your ORIGINAL effective date of when you applied.  

However, 3.156 B applies to ANY evidence, BUT:

    a) unless the claim is "pending", you ONLY get the effective date from when you sent the new evidence. 

    b) If the claim is "pending", then you get the same effective date as 3.156 C, that is the most favorable effective date back to when you applied. 

     Now, you need to understand the pending claim doctrine.  If you apply for benefits, then get denied, that claim "remains pending" for 1 year, because you can still appeal it.  1 year, and one second after the decision date (not the effective date), that claim becomes "final" and is no longer pending. 

     So, if you sent in "new and material evidence" WITHIN A YEAR OF THE DECISION, the proper effective date is the date you first applied.  

     However, if you sent in "new and material evidence" AFTER a year of the decision, the proper effective date is the date you sent the new evidence.  

     I hope this helps.  You need to check to see if the evidence submitted was "service records" or was it pending.  If neither of these is the case, then you got the proper effective date.  

     

[SgtKidJoe]

broncovet,

 

The orders was not in my service records. I had to supply the copy of the jump orders, even though my medical records do show the injury.

Edited May 28, 2019 by SgtKidJoe

[SgtKidJoe]

The first decision was 2 March 2015.

I refiled on 18 Nov 2016, w/ final decision 13 March 2017

[broncovet]

Given the numbers you posted, your rater made an error.  A reopen under 38CFR 3.156 C should net you the original claim date because you supplied new "service records" to support your claim.  

38 CFR 3.156

Quote

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a)New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimantmay reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b)Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c)Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2)Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

 

[SgtKidJoe]

broncovet, how would I write that in there?