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.

[rogus]

§ 3.156 New evidence.
New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)
(b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)
(c) Service department records.

(1) Notwithstanding any other section in this part, 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, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based 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.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))
(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

Cross References:
Effective dates - general. See § 3.400. Correction of military records. See § 3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006; 84 FR 169, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019; 86 FR 15414, Mar. 23, 2021]

I think you are correct there.

[rogus]

38 CFR § 4.6 - Evaluation of evidence.

§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

I think I can see how this might apply.

[broncovet]

Rogus:

     Berta has offered to help you.  But she needs to see your decision.  Yes, it would take some time, but white out your name, address, and any other "identifying" information, such as your city and state if you please.  Neither Berta, nor myself are interested in your name, address etc.  We are not hackers trying to destroy you. 

      We both have been on hadit helping Vets and sometimes receiving help, "over 10 years".  

      This said, I like the lawyer idea.  Your case is exceptionally complex and it would take a review of your file.  

       The VA has certain things "they must do" to reduce you.  For example, they "must" give you 60 days notice of your reduction.  

Source: https://www.law.cornell.edu/cfr/text/38/3.105

      If VA failed to give you this 60 day notice, your reduction/severance could be void ab initio:

(d) Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

(Authority: 38 U.S.C. 5112(b)(6))

(e) Reduction in evaluation - compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

"If" the Va did not give you the proper notice, a lawyer may well be able to render the decision reducing your benefits void.  There are pro bono lawyers which may be available.  

This is wrong to take a PTSD Vets benefits like that.  

[Berta]

I  understand you want the VA decisions to remain private.

I searched the BVA quite a bit yesterday with one of the excerpts you quoted and found nothing that seemed to be your case, and that was before you mentioned you want the decisions to remain private, as to the cause of your PTSD.

Your lawyer will need the decisions, of course, and I hope you gain a good lawyer to help.

Yes- 38 CFR 4.6 and 38 CFR 3.156 (c) do seem to apply to the decisions. But that is really just a guess on the limited info we have.

 

 

 

 

 

 

[rogus]

To Berta and broncovet - I did not mean to imply anything negative about either of yours intentions. I realize that you are both only trying to help. If I beleived otherwise I wouldn't have come to this forum. I don't mind discussing the effects that my PTSD has had on me over the years, however it literally took me years to discuss why I have PTSD with my current VA psychologist. As I had mentioned the cause is mentioned throughout my BVA desicion and I would have to heavily redact it probably to the point that the document would be meaningless. I then feel that some well intentioned member of the forum would would do a search one some of the unredacted phrases simply to get a better idea of what's happening with my case. In doing so would undermine the privacy that I wished to protect.

I would like to say that the responses I have already recieved have helped me out tremendously and I thank everyone who responded to my post. I really need the encouragement and support to proceed and I appreciate the fact that a site such as HadIt exists.

I expect a response from the lawyer today. I will post the response and i will keep the forum updated.

PS Berta - like your taste in music.

[broncovet]

Rogus:

    When we have SPECIFIC information, we can give SPECIFIC advice.  When we have only "general" information, we can only give general advice.  Berta and I (among others) are highly reluctant to try to interpret "a Veteran's interpretion" of his decision.  Our advice, can not be better than the Veteran's interpretation, if we are interpreting the Veterans interpretation.  

    This is why we, like virtually all lawyers, want to see a decsion.  You are NOT requred to post it, but we cant give great, precise answers if you dont.  Its certainly ok.  Im often reluctant to post decisions, for some of the same reasons you are.  

     I went through a rather long newbie period, where I expected people to give me advice based upon "what I thought" about a decision.  Most experienced people did not want to do that, and I thought, Gee, why not?  I already told them what the decision said.  Not exactly.  I did not quote the decision, I just gave my interpretation of what I read.  

     Berta and I have been around 10 years.  

     We would like to hear what your lawyer said.