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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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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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Wanderer

Will I actually get compensation back to the original date I filed a claim approx 25 years ago?

Question

Last year I was awarded 30% for asthma. This is the first time I received a benefit from the VA. I claimed bipolar also and I just noticed that eBenefits said my old bipolar claim (this was my third attempt) was reopened, however, it also said that does not mean you will be able to be compensated that far back. 
 
But I just got this quote off your vets law blog:
"If you reopen a previously denied claim by submitting New and Material Evidence, and you  win the reopened VA Disability claim based on military records, military service records, or military medical records that were previously unavailable to the VA or that the VA neglected to get in the prior claim, you can use the effective date rule in 38 CFR 3.156(c) to get an effective date of your original VA Disability claim date."

I met with the C&P examiner Nov 1 and afterwards he told me he would report I definitely had bipolar in the service. eBenefits says it is in Prep for decision. I ordered the 30 day Ramp a couple days ago. 
Does his examination count as New and Material Evidence? If so, and they go back that far, then I'm astounded.

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Posted (edited)

I would sure try to get the EED retro payment, however the VA will fight you on this with all they got, so I recommend you seek an Experinced Attorney,  Attorney Chris Attig comes to mind  or maybe a certified accredited claims agent.

because to win you may have to use CUE &The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim). This is an extremely difficult burden and veterans rarely win these cases

note: if you have not requested an updated C-file  you should do so ASAP.

Edited by Buck52

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Accurately predicting "what a rating specialist will do" is difficult.  However, in every single case I am aware of, the GS7's do not have the authority to award benefits that result in a 6 figure check, unless this was authorized by a BVA/CAVC judge.  

38 cfr 3.156 c is subject to interpretation by VA, and, the Supreme court in Chevron and Auer have demonstrated the VA can interpret their regulations as they so choose.  

At issue:  Is the doctors statement "new and material SERVICE RECORDS" or is it new and material "EVIDENCE".  Unless they have uncovered SERVICE RECORDS, then you wont be eligible for 3.156 C benefits.  This doctors statement is not "service records", but he may possibly have read some which were not available in the past.  I dont know that.  

You posted:

Quote

I met with the C&P examiner Nov 1 and afterwards he told me he would report I definitely had bipolar in the service.

Did you read this doctors report to see what he actually said??  His "report (you) definately had bipolar in service" is not new service records.  It may be new evidence, but, unless this doctor's opinion was based on some service records which had been lost, but then found, I would guess your chances of getting an eed are slim.  

This said, effective dates are very complex, and depend on many factors found in your cfile.  Since I have not reviewed your cfile, I can not opine on that.  

Your effective date will be the later of the facts found, or the date you applied.  For example, you may have had a worsening of the conditions, and may not have been eligible for compensation 20 years ago.  We dont know that.  Sometimes it will warrant a Fenderson "staged rating", when or if its determined your effective date was 20 years ago, but your condition got worse.  So, in this (Fenderson) example, you may get a zero percent rating for 15 years, but may get 20% for the most recent 5 years because your condition got worse 5 years ago.  

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If you got your 38 CFR 3.156 (c) info from beteranslaw blog,

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

this is Lawyer Chris Attig's site and he is a great veteran' s lawyer and also a member of hadit-

"I just noticed that eBenefits said my old bipolar claim (this was my third attempt) was reopened, however, it also said that does not mean you will be able to be compensated that far back"

I surehope your VARO heard of 38 CFR 3.156- but something triggered them to re-open the older claim (s)and that means they are on the ball-

I believe it was this:

"Does his examination count as New and Material Evidence? If so, and they go back that far, then I'm astounded."

I dont understand their rationale on the EED- but then again they don't know yet what the EED would be-

It should be - if you filed a claim for bi poar within one year of your discharge- and it was at least at 10% then- then the EED would be the day after your discharge-

If that does not apply to you= and you filed beyond that first year- I bet-if VA owes you any retro they might go back (under 38 CFR 3.156) to the date that is most favorable- to them! And might not be the best EED date , based on those denials.

I had a good friend and it took ten years ot more fr his claim to be awarded.

The local VAMC kicked him out of the DOM because he had a  SSDI award solely for bipolar but VA said he was NSC. When he finally followed my advice ( that took a few years for him to do-and mean time he did keep the claim going) his claim was awarded at the BVA. I was able to prove to his VA doctor that a Capt' Mass he had ( USN) first his first manifestation -of in service- 0f his bi polar. His VA doctor after reading my research and his SMRs and personnel file, agreed and prepared a great IME for him.His retro was close to or maybe a little over 1/4 of a million. 

His wife took him back and she became his payee because VA said his MH issue had rendered him incompetent. I told him he could fight that (I sure didn't consider him to be incompetent) but he said he was comfortable with the wife handling it.The wife was OK- dont get me wrong-I just feel VA uses their incompetence bull crap way too often. And has picked known felons to be the payee, in the past, for vets they stole $$$  from-all in our scandal section  think.

The other day I gave a link here somewhere to a vet whose EED went back to 1955- and it was a BVA award made maybe in 2006? I think it was a CUE however- but my point is Nothing is impossible.

 

 

 

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Yeah, it was a CUE -but sometimes 38  CFR 3.156 is amost like a CUE in some respects and the best thing about both of them is, if they succeed tyhere might e some MEGA retro due the vet.

https://community.hadit.com/topic/73411-to-cue-or-not-worth-it/?page=7#comment-457856

50 years of retro

 

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Did you submit "new service records" to the VARO?  Do you have a copy of your cfile so you know what the VARO has/or doesnt have?  

You are correct about 3.156 c.   Did your doctor who made this statement review your smr's?  

Did you have this same doctor before?  

There is a huge difference in effective dates between 3.156 C (new service records) and 3.156 (b) new evidence to a pending claim.  

Under 3.156 b, your effective date will go back to the beginning of the appeal period "if the claim was pending" (any stage of appeals, including if you are in the applicable appeal periods).  However, if the claim was not "pending", then the VA can still reopen under 3.156b, but your effective date will be the date you submitted new evidence.  

I agree with Berta.  Chris Attig is a hadit member and publishes important information for Vets.  He is currently representing me at the CAVC for an earlier effective date.  

You can email Chris at his website, and he will review your evidence to see if he thinks you should get  an eed.  You dont have to commit to hiring an attorney for them to do this...they wont commit and you dont have to either until both you and your attorney make an agreement to be represented with a fee agreement.  

 

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