VA denial of service connect for back condition

[Spearhead]

I have been denied service connection for a back injury for many years. The VA has denied

my claim on grounds of pre-existing condition and not aggravated in service.  Even though no such pre-existing condition 

was noted during my physical entry exam I  was told about this pre-existing after a back injury unloading a weapons truck.  I recently learned about the presumption of soundnes detailed in 38 U.S.C. 1111

 

My question is.  If I was to win my claim am I entitled to backpay for the years the VA have not applied the correct VA law to decide my claim? And if so how far back?  I started my claim in 1979. Thank you in advance for your help. 

 

 

[broncovet]

Probably.   As always, your effective date is the later of the "date of claim" or "facts found".  I have no idea your symptoms, when the doc said they began, etc.  But if you had similar symptoms you could potentially get retro back to 1979, "or even earlier" if you had recently got out of service in 1979 (within a year).  

To know for sure, would take a review of your claims file.  However, my intuitive feeling would be you could win an effective date back to when you first applied, "with some qualifications".  

1.  Did you appeal the 1979 denials?  

2.  Are you willing to get an IMO, if needed, to provide a nexus?

3.  It sounds like you have an in service event, but is it documented?  Thats a big deal.  

[john999]

I filed a CUE claim for being denied a higher level of disability way back in 1972.  I did not file an appeal back then and that was the tool they used to deny my claim for TDIU or 100%.  I had a lawyer and we went to Vet Court of Appeals.  I thought I had a slam/dunk but because I did not file the appeal back in 1973 I lost.  File an NOD and an appeal every time you get denied.

[jfrei]

I’m no expert on appeals but id say you may have a shot at a CUE claim and get it backdated to the original claim. I in my case my claim originally in  2010, found this site asked questions but waited to finally appeal after I went to a DRO hearing in 2016 spoke to the judge in person with my attorney. And she flat out said do not file a reconsider for right to the BVA and it has to be granted there... I an idiot opened my mouth of my attorney’s objection. She pulled me aside and politely said I’m going to save you years just trust me and she went on to explain anything involving anything over 25k of retro possible alittle less cannot be granted here at the Philly RO, but what I will do and we discussed it with my attorney is certify your appeal to the board as soon as he sends it to me I’ll send it to the BVA. This was in May 2016  and 2 months later because she had expedited it as a hardship it was approved money in account two months later..... I’m no fairy tale story but if you ask for help at the VA the right people do show up and if not I’ve fought my way through everything I’ve had to earn with the VA system. Unfortunately they have closed the few secrets I had used of course because they worked..... “but the only way to win an appeal that far back is CUE, but hire an attorney” just my advice sucks like for me I was entitled for 125k and had to pay a chunk for the fees but if i didn’t the VA likes to pretend that vets can’t learn VA law on the side and will deny everything they can if it’s just you 

[Spearhead]

On 5/9/2021 at 5:11 PM, jfrei said:

I’m no expert on appeals but id say you may have a shot at a CUE claim and get it backdated to the original claim. I in my case my claim originally in  2010, found this site asked questions but waited to finally appeal after I went to a DRO hearing in 2016 spoke to the judge in person with my attorney. And she flat out said do not file a reconsider for right to the BVA and it has to be granted there... I an idiot opened my mouth of my attorney’s objection. She pulled me aside and politely said I’m going to save you years just trust me and she went on to explain anything involving anything over 25k of retro possible alittle less cannot be granted here at the Philly RO, but what I will do and we discussed it with my attorney is certify your appeal to the board as soon as he sends it to me I’ll send it to the BVA. This was in May 2016  and 2 months later because she had expedited it as a hardship it was approved money in account two months later..... I’m no fairy tale story but if you ask for help at the VA the right people do show up and if not I’ve fought my way through everything I’ve had to earn with the VA system. Unfortunately they have closed the few secrets I had used of course because they worked..... “but the only way to win an appeal that far back is CUE, but hire an attorney” just my advice sucks like for me I was entitled for 125k and had to pay a chunk for the fees but if i didn’t the VA likes to pretend that vets can’t learn VA law on the side and will deny everything they can if it’s just you 

Thank you for the info and your interest it has helped me.

[Berta]

The BVA has made thousands of decision regarding "pre existing "conditions over the past 25 years. Sometimes the denials were wrong.

The VA has to come up with clear and unmistakable evidence that a condition pre existed service.

If you do gain service connection for the back problem, this is the way to get any potential retroactive cash.

Because the Award would surely be based on the date of the successful claim.

Here is a recent 2020 BVA award s the veteran and his lawyer challenged the past denial that said he had a pre existing condition.

This veteran filed a CUE claim. We have a full forum on CUE claims.

In part:
"The Veteran, through his attorney, argues that the RO improperly applied the presumption of soundness in the December 1996 rating decision such that the RO denied service connection based on the finding that the Veteran had a pre-existing back injury which had not been aggravated as the result of active service.  The Veteran points to his entrance examination dated in 1959, which shows the Veteran’s spine was found to be normal as evidence that the presumption of soundness ought to have been attached.  The Veteran argues that but for that error, the claim for service connection for a back disability would have been granted.  The Board concurs.

As a threshold matter, the Board finds that the argument advanced by the Veteran alleges CUE with the requisite specificity.  The Board will therefore adjudicate the merits of his claim."

and

"The Veteran’s allegation of CUE centers primarily upon whether the RO correctly applied the presumption of soundness provisions under 38 U.S.C. §§ 1111, 1132.  The statute provides that the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions are recorded in examination reports are to be considered as noted.  38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b).

The Federal Circuit clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness under 38 U.S.C. § 1111, 1132 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service.  

While the decision in Wagner did not exist when the December 1996 rating decision was issued, the Wagner decision, as explained by the Federal Circuit, was a statement of what the statute creating the presumption of soundness has meant since its enactment in 1958.  See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction)."

:Accordingly, revision of the December 12, 1996 rating decision is appropriate.  Service connection for thoracic and lumbosacral spine disability is granted, effective October 10, 1996, the day the claim for service connection for a back disability that was the subject of the December 12, 1996, rating decision was received.

 

ORDER

As the December 12, 1996, rating decision contained clear and unmistakable error (CUE) in the denial of service connection for a back disorder, the December 12, 1996 rating decision is revised to reflect a grant of service connection for a back disorder effective October 10, 1996. "

https://www.va.gov/vetapp20/files6/20042814.txt

 

This CUE is so good I will also put it into the CUE forum.

Can you scan and attach their lost recent denial to include the evidence list?

Cover your C file #, name, address, prior to scanning it.

When we see the decision we can help more.