Wrong effective date?

[allansc2005]

Got a veteran who applied for and was granted SC for PTSD; applied in December 2020, granted March 2021.

Veteran was paid back pay to December 2020, however, the vet was already denied SC PTSD back in 2009.

So should he have gotten back pay to 2009, or was the VA right in granting him only 3 months of backpay?

 

Thanks,

Allan 2-2-0 HOOAH!!

 

 

 

 

 

[Berta]

We were on line at same time-

I do not see this as a Fenderson case.

I regret that I think the VA decision that denied in 2010 was correct.

Others might well disagree and they will chime in.

[allansc2005]

Berta,

We don't have an issue with the 2010 decision, what we are asking for is for an earlier SC date for the veteran's award for PTSD made in 2020.

Veteran went from 50% SC in 2020, to 70% in 2021. Neither award took him back to the initial denial date for PTSD in 2010.

What's more puzzling is that AFTER we filed the Supplemental last month claiming an earlier effective date for the above, the VA sets the veteran up for ANOTHER C&P exam for PTSD, which will be the THIRD C&P exam for PTSD.

How will ANOTHER C&P exam address the request/issue for an earlier SC date?

 

Confused in Palm Beach.

 

Allan 2-2-0 HOOAH!

 

 

 

[Berta]

I felt Pacman and I were both  cautious of this new C & P exam--for PTSD- 

at first I thought maybe the exam regarded the other 4 contentions he had claimed.

You asked:

"How will ANOTHER C&P exam address the request/issue for an earlier SC date?"

I have no idea.

I only know of two ways to get a better EED and more retro- 38 CFR 3.156(c) claims, or a CUE claim- in situations like this-and that is why the past denial is so important. The other 2 ways I do not feel apply here but they are in the CCK link below.

These two types 3.156 (c) and CUE of claims for retro are much like the Watergate Question ( Circa Nixon) 

What did the VA know and when did they know it?

My points are the same ones found here :

https://cck-law.com/veterans-law/earlier-va-effective-date-of-disability/

These are outstanding vet lawyers- and they give the ways a better EED and more retro can be obtained.

Maybe the way the supplemental claim was worded will bring about a consideration of the past denial. But I would be surprised if it did.

Yet-I must add that Nothing is impossible! My personal claims, that got negativity from former POAs, succeeded anyhow.  Because I knew VA case law and they didn't.

The award letter might tell you more as to the EED they gave him.

The CCK link shows 4 ways to get a better EED and retro but I dont think they apply to this situation you have, but please read the fourth one under "New and Material Evidence Submitted Within an Appeal Period"

  as it Might apply-but that would take a complete review of the veterans C file and other evidence because it does not seem that he  sent New & Material evidence  ( which is called New and Relevant evidence now)within the appeal period.

Did he send enough proof of his stressor within any appeal period regarding the PTSD ,that triggered them to contact JSRRC.

That info would be in his records he has or in his C file.

I am basing my opinion on what I see here. There is probably more to this then we know.

After my husband died and I got a copy of his s VA med recs and years later a copy of my C file, which became extensive as I substituted myself as the claimant- I was STUNNED to see what was in the C file.

I knew malpractice had occurred when I got his medical records-( he had a 1151 claim pending when he died and also a higher PTSD rating claim.-)

My C file revealed a critical Peer Review report that supported my FTCA charges for wrongful death. The VA tried to tell me that Peer review report never had existed. They lied.

I had to continue my FTCA case without any medical reports at all I  could not find an IMO/IME doctor- the internet was very liminted in the 1990s, and at least 20 NY lawyers told me I could never succeed so I did all of the medical and legal work myself. I studied Cardiology, and neurology,and learned what every single acronym meant in the med recs. I proved a cover up in a different VAMC as well, and even a motive which FTCA does not require

and I won FTCA, and 1151, and 100% P & T posthumously  with a very favorable EED.

My point in all that is- will the VA lie? They sure will.

Will they hide stuff- yes if they can.

Will a good study of VA regulations and VA case law help a claim?

You bet. The regulations are used by the VA to deny but can also be used against them as well. 

I know you truly want to help this veteran but I think you need to see his entire VA C file to see what might be in there.

If the VA did have proof of his stressor before he re opened his claim, they could have called a CUE on themselves on the past denial- but VA doesn't like to do that ( but they CAN do it) ..but .they usually  would rather wait for the veteran to re open, or just not even try to gain compensation again.

 

 

 

 

 

 

 

Edited June 3, 2021 by Berta
added more.

[allansc2005]

Berta, in my earlier post I mentioned that the Supplemental Claim we submitted did include evidence that was not readily available back in 2009/2010, which contained medical opinions by physicians(not RN's, PA's.) that the veteran's stressor(s) for PTSD was in FACT "more likely than not.." a result of _____ that happened in Korea in 1978.

Today I'm having the veteran call the C&P folks at the VA and asking them what is his upcoming C&P exam for?

The PTSD NEXUS is already established, his 70% is acceptable...we're not asking for an increase!

38 CFR 3.156(c) is the standard here no doubt.

 

To me, the C&P exam is a waste of time, the veteran is P&T IU for PTSD et al, so no chance of his 70% being lowered, so IF they want to INCREASE his 70% to 100%, it won't address the issue of EED!

 

Also let me say that the amount of back pay here, by VA standards isn't that much, so the local RO shouldn't be squeamish about approving an EED.

 

Then again, how often is the VA not squeamish? BWAAAA!!!

Allan 2-2-0 HOOAH!

[Buck52]

Allan maybe broncovet will chime in on this  he is pretty good about EED Dates  and how to apply for them first filed or facts found ect,,ect,,,.....but if you can put up a redacted copy of why he was denied an EED  will help.

 but not sure why whey sent him to another C&P  IF HE WAS 70% Rated for PTSD ,  They may want to make sure he don't deserve a higher evaluation? or just he- hawing around  with the EED Request.

I don't think it matters how much retro a veteran is entitled to  to the VA  it can be small or high amount  but if its over 25,000  they do require a third signature I guess to make sure everything is legit...they have the reserves for retro$$$  but now a million bucks may take a while to get...

 

[allansc2005]

Buck I did include the denial letter here on the thread. I think it's on pacman's block here.

Berta did review it, and like the rest of us is confused as to why the VA wants to give the veteran ANOTHER C&P exam just to prove EED?!

 

It's Ludacris because the vet is already SC 70% for PTSD, we are just arguing the EED with a Supplemental Claim for higher review(the old NOD claim).

My entire thread lists the details.

Yes, Bronco is the man when it comes to EEDs, as is Berta

All you guys have helped me over the years, and a big salute for that!

 

Allan 2-2-0 HOOAH!