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Retro pay question


El Train

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I recently was awarded 80% for painful scarring with underlying tissue damage due to severe cystic acne.  This was originally denied in 1993. Reason was, it existed prior to military and the VA could not locate military service records.  They have since been located and used to prove the disability was aggravated in service.  I originally was low balled at 10%.  I got an outside IME that helped in getting the correct percentage (80% overall).  The C&P in 1993 stated I still had cystic nodular's.  Also, low grade photos show them as well.  The scars were obvious and never went away (Thus, the 80%).  

Is there any way to get my claim retroactive to 1993?

This article gave me a glimmer of hope.

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

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Well, yes.  Yours sounds like a "textbook" classic 38 cfr 3.156 c claim.  But,   Va effective date law is complicated.  Your effective date is the later of the "facts found" or your date of claim.  Since I have no idea when your disability occured,   It would take a review of your file to know for sure, and many attorney's will do that for you, free.  Get one experienced in Veterans law, and, specifically, EED or earlier effective dates.  There are multiple exceptions to the general effective date law, the most notable may be 38 cfr 3.156 c.  This covers when your service records are lost, then found.  

38 cfr 3.156c:

Quote
§ 3.156 New and material evidence.

(a)General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 claim. 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 VeteransAppeals 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))
 

By the way, I took my own advice, and have hired attorney Chris Attig in persuing my EED claim.  Its at the CAVC, and I should have an answer in a couple months.  

Vets attorneys are here:

https://www.vetadvocates.org/cpages/sustaining-members-directory

Edited by broncovet (see edit history)
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My advice is to contact an attorney, and show him your file.  A 1993 effective date could be as much as six figures (100,000 or more), and VA does not hand those out like candy at a parade.  Its probably going to take a judge to decide, mostly VA employees simply "pass the buck" by denying it, leaving the decision to a BVA or CAVC judge.  This is my opinion.  

I have been on this board a very long time, and most of the very large retros are won with an attorney.  Alex won a six figure retro, and he used an attorney even tho, he just might be the most knowledgeable non attorney (in Veterans law) in the USA.  

You may be able to win it yourself if you invest in a VBM (about 250 dollars),  do the research,  are very well organized and skilled at search engines, and exceptionally persistent and are willing to wait sometimes 4-10 years or more for a favorable outcome.  If there are no "glitches" in your appeal, expect VA to make up one or more.  

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I've contacted a few attorneys.  Including the one you hired.  I've yet to get a reply back.  So I'm guessing it's not a strong case.  If it was, I would think a 6 figure favorable outcome would be enticing.  Maybe it takes time for them to get back to me.

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Yes, it takes time.  Attornies who represent Vets are very busy.  There are 25 million Veterans, and a couple hundred experienced attorneys.  

Even then, make no mistake...they have to invest their money (in your case) sometimes for several years before they get paid.  So they can be, and are, picky.  

Some are so busy they take several weeks to respond.  I contacted Mr. Ken Carpenter.  Ken probably has won more money for Vets than anyone else.  Millions and millions.  It took him almost 3 weeks to respond.  When he finally did respond, I had already hired Mr. Attig, so I had to decline Mr. Carpenter.  

    Mr. Carpenter did not accept an email of my decision.  I had to mail it to him in paper.  (Not sure why).  As I explained, I had hired Mr. Attig in that couple weeks.  

    Some attorneys like certain types of cases, not all accept earlier effective dates.  Mr. Attig seems to prefer representation at the CAVC level of appeal.  Others may prefer a Board appeal.  They often find their "market niche" and focus on that.  

Bottom line, you may have to contact a half dozen attorneys, sometimes, before you get one to offer you representation.  It does not necessarily mean your case is weak..it could mean they are just backed up and cant handle more Vets right now.  

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Great!  This is a very good sign.  Attorney's almost always work on contingency, so THEY think you have a good case or they would not have accepted it.  (Its a dollars and cents thing.  They have to put time and money into you..for months or years and dont want to do that unless they get paid.)

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