complicated Effective Date Question regarding backpay

[USMC_VET]

I applied for OSA direct service connection in 2016 was denied and then reopened in 2018 and denied in 2019.

when i tried to reopen (intent to file in 2019 day after last denial) and filed in April 2020 was told that it couldnt be reopened and to submit my OSA (now secondary to PTSD not direct) as a supplemental claim with new evidence (2 IMO's) so i did. Was granted today but effective date is showing 4/24/20 which was the day the supplemental claim was received. I also have a new/increased claim pending from July 2019 that includes enough to push me from current 80% (now 90% with OSA) to 100%.  

I had figured even with the OSA not going back backpay wise to 7/2019 the effective date would be earlier and then show i was 90% during the intent to file backpay date in 7/2019. If my new/increase claims are granted that would mean my pay of 80% from 7/2019 to current should have been 100% and given significant backpay.

I dont know the following

1) is my VA math wrong

2) since my claim was for OSA secondary vs Direct does this mean it COULD have been included in the claim backdated to 7/2019 or do they not care it changed from direct to secondary

3) can i get my effective date back earlier to when the claim was made or is it because i submitted new evidence in 4/2020 that htey only go back that far.

 

for #3 the reason i ask is that i was denied headaches in 2012 and in 2015/2016 when i reopened and submitted more evidence while my backpay didnt go back to 2012 they did put that as the effective date.

[broncovet]

I will be interested in what they say.  Make no mistake, tho.  There is a shortage of attorney's who represent Veterans against the VA. 

You may well have to contact more than one firm, as any firm may decline to represent you because:

1.  They are too busy and dont have time to represent you.

2.  They lack expertise in the field of effective dates.

3.  They have limited their practice to certain aspects of Veterans law.  For example Chris Attig informed me he represented Veterans ONLY at the CAVC and not at the BVA.  

4.  They are unable to "see" an "issue of merit".  In the past, I have been turned down by law firms, hired a different firm and won.  

5. Personal reasons.  Family issues, health issues, etc. etc.  The covid 19 can cause problems here, too.  

     So dont be discouraged if this firm declines to represent you.  Its probably not your fault.  I usually contact at least 3 firms.  

Edited June 19, 2020 by broncovet

[ShrekTheTank]

Bronco is right on!  I have 3 turn me down then I had 4 accept me.  There are a lot of factors and for me I found Berry law Firm and they are great!  Keep trying and I will work it's self out!

[broncovet]

As always, your effective date is the later of the "claim date" or facts found, (the date the doc said you were disabled) with some exceptions.  

    "Two" of these exceptions is 38 CFR 3.156 b and 38 CFR 3.156 c.  Your post said that VA "reopened" it, denied it, then said it could not be reopened.  Im not buying that.  The VA either reopens it or not.  

     I think in 2018 3.156 was still called "new and MATERIAL" evidence.  (Now its called new and "relevant" evidence).  The difference is the degree.  If its "material" evidence it would affect the outcome.  But if its relevant evidence, then it may take other evidence, also, to alter the outcome.  

    My advice, in any case is the same:  You are almost certainly going to need a lawyer to get a "significant" retro.  

GS 7's or even GS 11's just dont have the authority to tell someone to cut your a 100,000 dollar check.  This usually takes a judge.  I have never known a Veteran to get 100k or more check by representing self at the VARO level.  It always takes a judge "at least" at the BVA level to authorize a 100k plus retro.  

    Effective date rules are very complex.  Dont take my word for it, read them:  This does not include rules on informal claims, cue, 38 cfr 3.156, etc, so its not a complete list:

Quote

38 U.S. Code § 5110.Effective dates of awards

• U.S. Code
• Notes

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(a)

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010; Pub. L. 87–674, § 3, Sept. 19, 1962, 76 Stat. 558; Pub. L. 87–825, § 1, Oct. 15, 1962, 76 Stat. 948; Pub. L. 91–376, § 7, Aug. 12, 1970, 84 Stat. 790; Pub. L. 91–584, § 13, Dec. 24, 1970, 84 Stat. 1578; Pub. L. 93–177, § 6(a), Dec. 6, 1973, 87 Stat. 696; Pub. L. 93–527, § 9(b), Dec. 21, 1974, 88 Stat. 1705; Pub. L. 94–71, title I, § 104, Aug. 5, 1975, 89 Stat. 396; Pub. L. 97–66, title II, § 204(b), Oct. 17, 1981, 95 Stat. 1029; Pub. L. 98–160, title VII, § 703(1), Nov. 21, 1983, 97 Stat. 1010; Pub. L. 98–223, title II, § 213(3), Mar. 2, 1984, 98 Stat. 46; Pub. L. 98–369, div. B, title V, § 2501(a), July 18, 1984, 98 Stat. 1116; Pub. L. 99–576, title VII, § 701(63), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5110 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §§ 4(a)(2)(A)(vi), (b)(4)(B), 5(c)(1), Aug. 6, 1991, 105 Stat. 403, 405, 406; Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688; Pub. L. 108–454, title III, § 305, Dec. 10, 2004, 118 Stat. 3611; Pub. L. 112–154, title V, § 506, Aug. 6, 2012, 126 Stat. 1193; Pub. L. 115–55, § 2(l), Aug. 23, 2017, 131 Stat. 1110.)

 

[USMC_VET]

10 hours ago, broncovet said:

As always, your effective date is the later of the "claim date" or facts found, (the date the doc said you were disabled) with some exceptions.  

    "Two" of these exceptions is 38 CFR 3.156 b and 38 CFR 3.156 c.  Your post said that VA "reopened" it, denied it, then said it could not be reopened.  Im not buying that.  The VA either reopens it or not.  

     I think in 2018 3.156 was still called "new and MATERIAL" evidence.  (Now its called new and "relevant" evidence).  The difference is the degree.  If its "material" evidence it would affect the outcome.  But if its relevant evidence, then it may take other evidence, also, to alter the outcome.  

    My advice, in any case is the same:  You are almost certainly going to need a lawyer to get a "significant" retro.  

GS 7's or even GS 11's just dont have the authority to tell someone to cut your a 100,000 dollar check.  This usually takes a judge.  I have never known a Veteran to get 100k or more check by representing self at the VARO level.  It always takes a judge "at least" at the BVA level to authorize a 100k plus retro.  

    Effective date rules are very complex.  Dont take my word for it, read them:  This does not include rules on informal claims, cue, 38 cfr 3.156, etc, so its not a complete list:

 

The new and relevant evidence was the two IMO's that linked PTSD and OSA.  I had submitted evidence in both 2016 and 2019 that i beleived them to be linked and specifically requested that my OSA be considered as secondary to PTSD along with direct connection.  The rest of the evidence i submitted this time was all the same except those IMO's.  

I have contacted a law firm and will see what they say

[USMC_VET]

1 hour ago, broncovet said:

I will be interested in what they say.  Make no mistake, tho.  There is a shortage of attorney's who represent Veterans against the VA. 

You may well have to contact more than one firm, as any firm may decline to represent you because:

1.  They are too busy and dont have time to represent you.

2.  They lack expertise in the field of effective dates.

3.  They have limited their practice to certain aspects of Veterans law.  For example Chris Attig informed me he represented Veterans ONLY at the CAVC and not at the BVA.  

4.  They are unable to "see" an "issue of merit".  In the past, I have been turned down by law firms, hired a different firm and won.  

5. Personal reasons.  Family issues, health issues, etc. etc.  The covid 19 can cause problems here, too.  

     So dont be discouraged if this firm declines to represent you.  Its probably not your fault.  I usually contact at least 3 firms.  

I had contacted Hill & Ponton but they will ONLY represent Vets that are unable to work or working in sheltered environments im guess they are primarily looking for those 70% vets that arent working so they can make a TDIU claim, which i dont fault them for

[USMC_VET]

17 hours ago, broncovet said:

As always, your effective date is the later of the "claim date" or facts found, (the date the doc said you were disabled) with some exceptions.  

    "Two" of these exceptions is 38 CFR 3.156 b and 38 CFR 3.156 c.  Your post said that VA "reopened" it, denied it, then said it could not be reopened.  Im not buying that.  The VA either reopens it or not.  

     I think in 2018 3.156 was still called "new and MATERIAL" evidence.  (Now its called new and "relevant" evidence).  The difference is the degree.  If its "material" evidence it would affect the outcome.  But if its relevant evidence, then it may take other evidence, also, to alter the outcome.  

    My advice, in any case is the same:  You are almost certainly going to need a lawyer to get a "significant" retro.  

GS 7's or even GS 11's just dont have the authority to tell someone to cut your a 100,000 dollar check.  This usually takes a judge.  I have never known a Veteran to get 100k or more check by representing self at the VARO level.  It always takes a judge "at least" at the BVA level to authorize a 100k plus retro.  

    Effective date rules are very complex.  Dont take my word for it, read them:  This does not include rules on informal claims, cue, 38 cfr 3.156, etc, so its not a complete list:

 

I just realized that my denial wasn early 2019 but July of 2019. I couldve filed a NOD for this not a supplemental.

Ive contacted a couple law firms, but i dont think i can file a NOD for the 7/2019 denial after my supplemental claim was approved