Rating for a claim that was denied previously

[FRG vet]

Hi,

I just received a 10% rating for a claim I once was denied for. Do you know if I am entitled to retroactive pay to the first date of my original claim? They did regard this as service connected but awarded me a 0 rating back then. Not sure if there is something I can do as I have had this pain since I left the military and didn't appeal the 0 rating in the beginning.

Any advice?

Thank you in advance.

[GBArmy]

FRG vet Congratts on finally winning your claim! That's the great news. Unfortunately, the way to get back pay is you have to continuously pursue your claim. If denied, you have to appeal thru the VA system within 365 days of the date on your decision letter that originally denied you. There is a process called CUE, clear and unmistakable error, that a veteran can try that doesn't have any time limitations. For it to be successful, you have to prove the VA made a significant error on the original decision. If your medical records were in your file all along and the VA approved on your second attempt based on those records "that just showed up" might be an example of a CUE. There are many postings here on Hadit and elsewhere on the CUE process, but if your approval was based on new evidence, not much chance of getting back pay, or EED.  It is determined based on finding of fact and when you notified the VA of your injury and request for disability. If you didn't apply for years then it is hard to hold the VA accountable when they didn't know, if you get what I mean. But good going on your award; nice job of not giving up.

[Buck52]

10 hours ago, FRG vet said:

Hi,

I just received a 10% rating for a claim I once was denied for. Do you know if I am entitled to retroactive pay to the first date of my original claim? They did regard this as service connected but awarded me a 0 rating back then. Not sure if there is something I can do as I have had this pain since I left the military and didn't appeal the 0 rating in the beginning.

Any advice?

Thank you in advance.

Yes you should get back pay to the date you first filed, even if they give you a service connected rating at 0% at a later date  and you kept your appeal time limit, you will get a 10% rating and the retro.

Make sure this 10% rating is meeting the VA Criteria for the 10% ??   it could be more so you need to check the rating criteria for your now service connected 10% condition if if is more than just 10%...IT IS YOUR CHOICE TO APPEAL THAT. (Most Veterans do Appeal)  but not knowing your financial circumstances..the 10% may help you and your family now.  just don't hurt yourself.

[Berta]

FRG, You stated :

"I just received a 10% rating for a claim I once was denied for. Do you know if I am entitled to retroactive pay to the first date of my original claim? They did regard this as service connected but awarded me a 0 rating back then."

As GBA said, there is the option of filing  CUE claim on the older decision that awarded SC but at a "0" percent, however there is an aspect of CUE that will have to be satisfied- a CUE involves a decision that 'manifestly altered the outcome'- meaning in VA lingo, a probative CUE would garner you some retro cash.

You would need to prove that the "0" % ,based on medical evidence in VA's possession at time of that decision, for the same 10 % condition you have now- should have garnered you at least 10% SC at that time.

This type of CUE claim is VERY difficult to succeed in.

I have not found a successful CUE like that yet-but maybe Buck knows of one, that would help

 The past decision and rating sheet would be needed to see what evidence the VA used for the "0".

 

 

[Berta]

Please read JustGettingStarted's post here after my post:

I am pretty sure he won a CUE but forget what it was for-in my opinion he definitely should have had a higher rating than "0" and I felt the medical evidence warranted a CUE award.

 

https://community.hadit.com/topic/47459-how-my-cue-succeeded/

To add, please do not get this mixed up with some of my past advice on CUE regarding NSC conditions-- here it is from a August 2015 post I made:

Berta posted:

" If you subsequently succeed on getting a SC rating for something VA deemed as NSC in the past, and it was at a ratable level when they stated NSC 30% PTSD for example on the old rating sheet,

and is exactly the same disability that they finally awarded (giving you retro just back to the date of that claim,

and all of the evidence they had established at time of the older decision should have warranted a SC rating then but they gave you NSC instead......

it is common sense that one should seriously consider the CUE regs here, and file a CUE."

 

Edited November 2, 2020 by Berta

[Berta]

Sorry _I said 'he' but JustGettingStarted is a She -a female veteran, and she  did very well by being persistent with VA.

https://community.hadit.com/topic/72718-won-my-cue-claim-for-skin-condition/

"I just got a phone call from my VSO who said my RAMP decision letter will be mailed out today.  I won an earlier effective date (CUE claim) for my skin condition!  I was denied on the PN earlier effective date which I knew was a long shot.  My skin condition was rated at 0 in May 2009 and I had an overall rating of 60.  In Jun 2017, I was finally increased to 60 for my skin condition.  If I had been rated correctly for my skin condition in 2009, my overall rating would have been 80.  So the back pay will be the difference between 60 and 80 percent from May 2009 to June 2017 -- not bad.  I can't wipe the silly grin off my face.  You can see my other posts in the CUE Forum."

The skin condition had been rated erroneously at"0" in 2009.The medical evidence the VA had obviously had not been properly considered.

Also we had a former member here who insisted CUEs on RO decision be filed as a Motion for CUE.

It was, I recall how this vet first filed her CUE, based on their wrong advice- but The RO cannot act on a Motion for CUE.

She corrected that error.

Motions for CUE are only apprirate on BVA decisions.

We have templates here on how a CUE should be prepared when it is filed on a Regional Office decision.

 

 

[FRG vet]

1 hour ago, Buck52 said:

Yes you should get back pay to the date you first filed, even if they give you a service connected rating at 0% at a later date  and you kept your appeal time limit, you will get a 10% rating and the retro.

Make sure this 10% rating is meeting the VA Criteria for the 10% ??   it could be more so you need to check the rating criteria for your now service connected 10% condition if if is more than just 10%...IT IS YOUR CHOICE TO APPEAL THAT. (Most Veterans do Appeal)  but not knowing your financial circumstances..the 10% may help you and your family now.  just don't hurt yourself.

Hence the problem - there was no appeal after I received my 0% rating for the first filing. I only reapplied at my VA doctor's urgence. Had it not been for her, I wouldn't have filed any sort of claim, to include MST. Had no idea I was living through such an ordeal my entire life. But now thankful that she advised me. 

Just curious about the retroactive back pay since the first claim was rated at 0% and then no appeal, opened up a new claim and it's 10%.