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


rogus

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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.

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  • HadIt.com Elder

The claim is at the BVA-

however I wont post the link, but I saw nothing in it that we have not seen here before.

It was not a remand but an award.

You said:

 "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."

The BVA decision was based on a March 2012 decision. That is why you got back pay to 2011 when (I assume( the claim was filed that BVA based their decision on.

 

What I do not see is anywhere in your posts that neither you or your vet rep  filed either a CUE or better yet a 3.156 (c) claim to recover the retro they seem to owe you.

The VA cannot act on any potential retro until you file a formal claim for it using the citations above ( 38 CFR 3.156 and/or 38 USC 4.6).

Please REDACT  your SSA# from the first download.

If I were you I would also contact the VFW if they still hold your POA.

This is what I see missing here- the award from the RO probably never mentioned any retro- past the 2011 date - because they have not received ( as far as I can tell) a proper claim for the additional retro which appears to be due to you-, under 38 CFR 3.156 (c)- rather then a CUE.

A CUE would work only if they deny the 38 CFR 3.156 (c) claim.

There are hundreds, maybe thousands of veterans here and at the BVA who won a better EED under 3.156 (c).

I am stunned that your VSO did not advise you to file that way.

Then again many VSOs do not have a clue on what they are doing.

A formal claim has to be filed for a better EED ( earlier effective date) 

Have you ever had anything sent to or from the VARO since they made the award?

 

 

 

 

 

 

 

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  • HadIt.com Elder

to add-you said:

"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)"

Your retro might go back to that 1998 claim.

You might  need a lawyer for the severed situation....that decision does not make sense to me at all-

If you have that decision please redact it and attach it here-but I think we are limited to seeing something is wrong here and a formal claim must be filed.

Maybe that decision would hold a valid CUE basis. I guess you did not respond to that proposed reduction  in time?

 

 

 

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Berta - I was awarded back pay from 1998 to 2002. In 2002 the VA regional had reversed it's original decision from 98 and granted me service connection and a 100% rating (just not T&P).

The problem occurred in between 2005 and 2010 after the VA claimed they committed CUE in a 2005 decision and then they severed my service connection.

The BVA did re-instate my service connection for PTSD and I was back payed from 2011 to 2015

  In 2010 I filed a form late and the VA then afterwards claimed they only received my claim in 2011. I'll search for that document.

The VFW didn't see any problem with that after the BVA awarded the claim and I didn't see any problem till I recently looked closer at the BVA award letter recently which is why I contacted the lawyer. I just finished filing their intake paperwork out so I don't know yet if anyone there wants to touch this.

Contacted the VFW once I realized what the BVA had noted about the evidence that the VA had in their possession prior to their 2005 decision to sever my service connection but the VFW didn't want to touch it.

I will find the VA letter on why they claimed cue and post it.

But yes I am seeking a lawyers help with this to file something formally.

I didn't file anything previous because at the time of that decision I was relying on the VFW to steer me correctly and I put the BVA document away without really reading anything other than the fact they approved my claim.

It has taken me this long to be able to look at that BVA letter simply because until now I didn't think I could handle it mentally.

If there is someway to send these documents to you directly this might speed up the process.

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  • HadIt.com Elder

No- you need to send them to whoever will be holding your POA ( Power of Attorney)

I suggest you try the VFW again-lawyers usually are interested in claim that have been denied.

A lawyer might tell you to get a VSO to help file the claim.

I dont file claims with the VA, I am not a service officer or Vet rep.

The only person who can "speed up the process"- is if you can get a good vet rep to help file the claims. They can come here as a guest to see what we suggested.

But the claims process and forms have changed since your award and ,due toCovid, etc, the VA is slower than ever. I dont know what could speed them up.

If VFW does still represent you formally, you can-if they wont help- revoke their POA  and you can obtain a different POA.Make sure the VA knows of the revocation.

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