Intent to File / Backpay / Separation Date

[glashutte]

Hi Community,

I ETS'd from the Army in July 2017 and filed my Intent to File in June 2018 (1 year from separation). 

Once my VA disability claim becomes approved, will the pay be backtracked to my ETS date or my Intent to File date?

[Buck52]

Now for your within 1 year from exit the military  you after you get out they should go by your exit date.

this is good for you newer vets.

For us older Vietnam Vets or Vets of the Vietnam era  we never was informed on filing our claims after we got out...at least I wasn't

As for as the ITF I would file one today if I was going to file a claim...give me more time to rake up my evidence and get my C-file  and extra year of retro comes in handy for any family.

When a Veteran files an ITF (Intent to File) he can wait 1 year to submit his claim for adjudication.  this means they won't look at the claim nor do you need to tell them what your claiming  just file the INT that is good enough  but you really need to watch the date and put it down on your calendar to file it  -submit it before the 1 year is up...

[GBArmy]

M21-1  

When determining the date of claim and its relationship to the proper effective date for assignment, consider the date of receipt of a complete claim, as well as a related intent to file (ITF) or incomplete claim filed within a year prior to the date of receipt of the complete claim.

 

Notes: 

• Do not associate an ITF with a supplemental claim.
• If a claimant files both an ITF and an incomplete claim before the complete claim is filed, the complete claim will be considered filed as of the date of receipt of whichever was filed first, provided it is perfected within the necessary timeframe.

This sorta kinda implies the date of the ITF would be considered, IMO. But, you are dealing with the VA here, so don't be surprised if you are awarded the later date anyway.

[glashutte]

This is all great info and good links, thank you. 

Ideally it seems like its always best to file within 1 year of separation. But yea, it does get iffy when a soldier files an ITF and not claim 1 year within separation. 

M21-1  

When determining the date of claim and its relationship to the proper effective date for assignment, consider the date of receipt of a complete claim, as well as a related intent to file (ITF) or incomplete claim filed within a year prior to the date of receipt of the complete claim.

 

It does seem like the ITF is considered but I agree its the VA. Seems like a grey area

 

[glashutte]

Here is from the following section, what do yall think? III.iv.5.C.2.c.

 

A Veteran is honorably discharged from active duty on September 1, 2015. On December 1, 2015, VA receives the Veteran’s communication of an ITF. On November 1, 2016, VA receives VA Form 21-526EZ from the Veteran with a claim for SC for a knee disorder.

The potential effective date of entitlement to SC for the knee disorder is September 2, 2015, the day following the date of discharge.   Rationale: VA received the communication of an ITF within one year of the date of discharge. VA received the VA Form 21-526EZ within one year of the date VA received the communication of an ITF.

[Dustoff1970]

Broconvet gave you a list of good alternatives to achieve an earlier effective date including CUE claim.

One example of VARO CUE error is if important official VA and or military medical records were within "constructive receipt" of the VA adjudicator but not before him on his desk at time of decision then courts have ruled this is CUE.  They have defined constructive receipt among other things as I just stated.

How do you go about proving this I don't know.  I have filed and appealed a successful CUE claim and appeal in 2000 to 2005 all the way up to the CAVC court but my CUE contentions were not about missing medical records.

[broncovet]

The way to prove a Cue, Dustoff, is the same "general method" to prove a regular claim.  Find the criteria, and ensure you have all the critieria documented.  

Proof for a regular claim (Criteria): (The Caluza elements, below, are slightly different for presumptive, secondary, or 1151 claims)  

1.  Current diagnosis

2   In service event or aggravation

3.  Nexus.  

Proof for Cue:  There is undebatable error on the decison which is: (Burden is on Veteran to prove CUE, no assistance can be expected by VA)  

1.  Outcome determinative error

2.  Based on the regulations and evidence at the time of decision.  

3.  There is NO benefit of the doubt.  

4.  Errors involving VA's duty to assist do not qualify.  

5.  The error must be pled "with specificity" generally identifying the regulation which was violated.  Berta often uses 38 CFR 4.6.   

6.  The claim must not be "pending". Cue only applies to finally adjuticated decisions.  "Errors" made by the VA prior to adjutication can be fixed by VA prior to adjutication so they are not outcome determinative. 

7.  A c and p examiner is "presumed competent" to opine, absent a challenge by the Veteran to the examiner's competence.  This means that a doctors opinion is correct, and an additional medical opinion wont make it "undebatable".  

Edited December 20, 2019 by broncovet