Claim won but only partial back payment, should I forget it?

[rogus]

In an odd situation and don't know what avenue if any I should or can pursue. I originally filed in 1998 for PTSD and fought 4 years for against the VA. In 2002 I was awarded 100% (but not total and permanent and was in psychiatric ward twice that year). In 2004 the VA Claimed CUE (clear and unmistakable error) and severed my service connection in 2005. For the first 2 years a vet org helped me appeal and then just started ignoring my request for help. I was given the impression that my case wasn't winnable an they would no longer pursue it. I then spent a few years trying to defend myself but in 2010 I filed some paperwork late but continued on with the appeal process. Around 2013 I managed to find another VSO that would help me out and eventually (2015) I won my case, I was rated at 70% for my PTSD and with my IBSD rating that kicked it up to 80% and I was awarded T&P IU. However I was only back payed to 2011. Talked to the regional office and was told it was because I filed that paperwork late in 2010 but that I could appeal that. Now I have been in the psychiatric ward 6 times and still have thoughts of suicide on a regular basis. (Right now I'm on the VA "Hot List"  and am getting calls from VA social workers to make sure I'm ok.) Well after spending 10 years worrying about whether I and my family were going to make it and going into debt I was happy to just call it quits at that point and figured it was just the VA getting a last "boot in".

A couple of days ago I found a copy of the VBA Judges decision and actually read it thoroughly. This is a direct quote "Service connection for an acquired psychiatric disorder was previously denied, however, at the time of the last decision on this claim, some of the Veteran's service records were not in the claims file.They have since been obtained.  Under 38 C.F.R. § 3.156(c) (2014), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  Here, because relevant service treatment records have been received since
the last decision on this claim, and because there is no indication that VA previously would have been unable to obtain them because they did not exist or because the Veteran failed to provide sufficient information,
the claim must be reconsidered on the merits.  See id."

So the VA put me thru hell for 10 years for a mistake they made by mysteriously losing records from my file. Then I lost 5 years of back pay after I made a mistake - after having been put in a situation they created and I shouldn't have been in in the first place. Am I understanding this correctly or is my anger after finally realizing what happened clouding my view? If I am correct is there anything I can do about it? The VSO that helped me finally win this case told me that if I pursue this I will lose my T&P rating and possibly have to go thru another decade of their bs. I got to admit I'm afraid of even requesting records now simply because of the bs that the VA pulled over that 10 years am in no condition to go into another decade long fight with them. I can't hold a job because to much stress will cause me to have hallucinations (which is why I was in the psych ward twice in 2002 the last year I held a job). Not only that but I can't even try to raise a few bucks by selling my plasma because of the years I was overseas. My wife who quit her part time job in 2018 to look after me meets the VA's requirement as a Care Provider but because I served after Vietnam and before 9/11 she can't sign up for that program till Oct 2022. I don't know what to do or even if I can do anything? Plz send some advice my way.

[pacmanx1]

9 minutes ago, rogus said:

was told by the vso that as soon as I re-open the claim my t&p status is gone.

I do not want to call this individual a liar but typical for some VSO to say don't rock the boat. I fired my VSO when I was around 30%-40% and I won the rest of my claims on my own and I have been 100% schedular for over a decade.

Please see my earlier post.

Fear of Reduction Wait Read This - VA Disability Compensation Benefits Claims Research Forum - VA Disability Compensation Benefits Forums - HadIt.com Veterans

 

[rogus]

I have to wonder if this section doesn't apply to me since they severed my service connection claiming CUE - except in cases of clear and unmistakable error (CUE), a decision review officer "may not revise [an AOJ] decision in a manner that is less advantageous to the claimant than the decision under review").  

 

You know I read some of the comments to your post and one person said that so long as your honest you have nothing to worry about (paraphrased). I wish that were true. Many years ago when you could still smoke on the VA campuses I was having a smoke in one of the pre-scribed smoking areas and met a claims adjudicator. I didn't know that when we first started talking. We got around somehow to talking about PTSD claims and he said that he automatically denies them. Being rather shocked at this I asked Why? He said it was because if he approved them those vets would get more a month than he will when he retires. Although I didn't get this persons name I reported the conversation to a patient advocate. I found out much later that he had been fired. The thing is, is that the VA has a long history of pulling this kind of bs. People found hiding veterans files above ceiling panels then denying claims because the vets files no longer exist and therefore they can't approve the claim. At that time adjudicators were being paid bonuses for the number of claims they closed. Quickest way to close claims is to deny them. If you "lose" the files it makes the vet have to start again and eventually the vet will give up. In the meantime new vets are filing claims for that these particular adjudicators to deny. Don't have to take my word for it either there are newspaper stories and old news reports that you can find if you search them. Here are just some more recent examples of the the VA being underhanded.

https://www.kare11.com/article/news/investigations/kare-11-investigates-veterans-wrongly-denied-benefits-during-pandemic/89-4318573a-1709-4918-874f-58bd597f78db

https://www.justice.gov/usao-sdga/pr/va-employee-charged-falsifying-medical-records-numerous-veterans

https://www.cbsnews.com/news/veteran-benefits-administration-mismanagement-uncovered-in-investigation/

[rogus]

I have to wonder if this section doesn't apply to me since they severed my service connection claiming CUE - except in cases of clear and unmistakable error (CUE), a decision review officer "may not revise [an AOJ] decision in a manner that is less advantageous to the claimant than the decision under review").  

 

You know I read some of the comments to your post and one person said that so long as your honest you have nothing to worry about (paraphrased). I wish that were true. Many years ago when you could still smoke on the VA campuses I was having a smoke in one of the pre-scribed smoking areas and met a claims adjudicator. I didn't know that when we first started talking. We got around somehow to talking about PTSD claims and he said that he automatically denies them. Being rather shocked at this I asked Why? He said it was because if he approved them those vets would get more a month than he will when he retires. Although I didn't get this persons name I reported the conversation to a patient advocate. I found out much later that he had been fired. The thing is, is that the VA has a long history of pulling this kind of bs. People found hiding veterans files above ceiling panels then denying claims because the vets files no longer exist and therefore they can't approve the claim. At that time adjudicators were being paid bonuses for the number of claims they closed. Quickest way to close claims is to deny them. If you "lose" the files it makes the vet have to start again and eventually the vet will give up. In the meantime new vets are filing claims for that these particular adjudicators to deny. Don't have to take my word for it either there are newspaper stories and old news reports that you can find if you search them. Here are just some more recent examples of the the VA being underhanded.

https://www.kare11.com/article/news/investigations/kare-11-investigates-veterans-wrongly-denied-benefits-during-pandemic/89-4318573a-1709-4918-874f-58bd597f78db

https://www.justice.gov/usao-sdga/pr/va-employee-charged-falsifying-medical-records-numerous-veterans

https://www.cbsnews.com/news/veteran-benefits-administration-mismanagement-uncovered-in-investigation/

[broncovet]

Wow!  You need hadit! I agree with Pacman.  You posted:

Quote

was told by the vso that as soon as I re-open the claim my t&p status is gone.

 

Absolutely false.  There are no regulations that suggest "reopening" a claim voids P and T status.  We see this a lot from LAZY, uninformed, or lying VSO's.  

You will be P and T (or not) based on evidence, not whether or not you reopen a claim. 

You need to fight for your retro.  And, yes hire an attorney if necessary.  

The attorney "need not" be near you.  Attorneys who represent Vets pretty much do so nationwide.  Get a NOVA attorney:

https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

Some names I am familiar with:

Chris Attig, Attig and Steele

Hill and Ponton

Bergman and Moore

CCK law

     You should do well with any of those, but there are other good ones too.  You can do a case search, using the attorney's name, and find out how he has done with other Vets.  

[rogus]

They claimed that I hadn't submitted evidence of an in service stressor and even though there was evidence that I was being seen while in the military by the base mhc because the appt dates were logged in my regular medical file. Obviously I was being seen there for something. All mhc notes however had vanished so I never had access to them. They decided that letters of support from the treating psychiatrist was no good because he was just going off what I told him. (This was 2005 when they severed service connection. I want to add a little context and background at this point.)

I was being treated outside the VA until 2002 which was the last year I had private insurance. I had been seen by military base mhc while in service and within a week a having gotten out of the service - in 1991 - until 2002 - I was being seen outside the VA. A little over a year after I got out I was placed in a psych ward for the first time for being suicidal that was in 1992. I didn't apply and pursue VA benefits until 1998 because I was determined to make it on my own. However by that time I had already been placed back into psych wards 3 more times for being suicidal. And for as stubborn as I am even I knew eventually I was going to need more than medical help. In 2002 I was placed in a psych ward twice for suicidal and homicidal ideation brought on by visual and audio hallucinations (bear with me - some of my terms may not be precise but I'm doing the best I can). That was the last year I held a job. (2002 is when I was awarded 100% for ptsd).

In 2005 when the VA claimed CUE and severed my service connection the 2 VA MHC doctors who were treating me at the time also looked over my service records (in private) and also wrote multiple letters of support (in private) showing how even the things in my regular medical files from the military supported my PTSD claim. Each time the VA responded by claiming (without evidence) that these doctors were just writing letters that I supposedly dictated to them. This was not only an insult to me but to the doctors who supported me because if this were true it would have been a serious breach of ethics (if not criminal) on their part and to think I would ask them to do that really pissed me off. Basically I was being called a liar If you want to piss me off that's the quickest way to do it. Remember eventually a BVA Judge decided I had submitted sufficient evidence to support my claim.

I have been under constant psychiatric care from about 1990 when I was still in the military till today (and I've submitted documents to the VA to prove it). My condition has never gotten better. With the way inflation is going rampant I just don't know what to. Do I pursue this and risk the VA being underhanded or do I just hope shit gets better.

[Berta]

The BVA gave you a hint. They gave me one too once.

I suggest a potential filing under 38 CFR 3.156.(c)

"CONCLUSION OF LAW "The criteria are met for an earlier effective date of July 2, 1969, for the award of service connection for PTSD and related symptoms, including anxiety and depression. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156(c) (2005); 3.400 (2016)."

https://www.va.gov/vetapp17/Files8/1745093.txt

A nice chuck of deserved retro cash.

"Appellant represented by: Robert V. Chisholm, Attorney at Law"

Chisholm ( CCK) is a great veteran's law firm.

This case below was denied ( but denials are as important as award because they show the error the veteran made in the claim.

But it holds the exact 38 CFR 3.156 (c) info you need.

"Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 

However, newly discovered service treatment records can serve as a basis for providing an earlier effective date under 38 C.F.R. § 3.156 (c). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1). An award made based on all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156 (c)(3). 38 C.F.R. § 3.156 (c) was amended effective on October 6, 2006. See 71 Fed. Reg. 52, 455 (Sept. 6, 2006). In this case, the Veteran timely appealed the assignment of the effective date assigned in the May 2016 rating decision that was in response to a claim filed on July 17, 2001. Consequently, the current version of 38 C.F.R. § 3.156 (c) and the one effective January 22, 1991, are applicable to the claim at issue. 38 C.F.R. § 3.156 (c) (2001-2020). 

The Board notes, however, that readjudication under 38 C.F.R. § 3.156 (c)(1) is only warranted if VA receives or associates with the claims file official service department records that are 1) relevant; and 2) had not been associated with the claims file when VA first decided the claim. Here, the Board finds that the October 26, 1988, treatment record is not relevant to the Veteran’s grant of service connection for degenerative joint disease, left hip. The Board also finds that all currently associated service medical records, including the October 26, 1988, treatment record, were previously of record at the time of the April 1991 Board decision when VA first decided the claim."
https://www.va.gov/vetapp20/files11/20075726.txt

Not enough info here to determine of the VA made a CUE.

 

 

Edited May 22, 2021 by Berta