The VA hopes you will overlook this. Dont. It could cost you $$$Thousands in retro.

[broncovet]

You just might be due retro.  If you applied for INCREASE.  An increase is when you are service connected at x percent and they later raise that because your condition got worse.  Expect the VA employees, your VSO, and even well meaning Vets advocates to doubt you.  You may even doubt yourself.  But read the following regulations:  

Quote

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

Or, if you applied for benefits within a year of exit from military service:

Quote

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

Source:  https://www.law.cornell.edu/uscode/text/38/5110

[Carl the Engineer]

OK, let me get this straight.

As an example,

A disabled Veteran is service connected for back pain, thoracic/lumbar, and rated at 20%, lets say in 2008.

Then, in January 2019, his back feels worse, goes to the doc.  The doc sends him to physical therapy in February.  In November, 2019 he makes a claim for an increase in lower back, and is awarded an increase to 40% based on the physical therapy records, and the date of the increase is the date of the claim, November, 2019.

From what I see, the date "should be" January or February, 2019.

So, the Veteran is loosing 9 or 10 months retro, the difference between 20% and 40%.

However, if the Veteran filed the claim in July 2020, then it would be the date of the claim, because more than a year has passed since the Veteran went to the doc.

Am I all wet?

Hamslice

 

[broncovet]

Well, yes, it sounds like you got it right.  You are not all wet.    You asked for (and were awarded) an INCREASE.  Instead of the date you filed, the increase should be effective When your doctor said it got worse, up to a year before you applied, just as the regulation, above, says.  

The only way to know if it applies to you, is to review your file with this regulation in mind.  

I think it should even be CUE.  The regulation is NOT ambiguous.  Your doctor (hopefully) was not ambiguous..your condition worsened.  

The way I found this out, is that I filed a NOD disputing the effective date.  I gave my reasons as to why it should be earlier.  The BVA rejected all my reasons, BUT still awarded me an extra year citing the above regulation.  

Lawyers perhaps, dont want to take cases like this: They would rather have six figure retros.  And they are busy.  One year is "not enough" for them to fight for.  

 

Edited October 31, 2021 by broncovet

[pwrslm]

7 hours ago, Hamslice said:

 

However, if the Veteran filed the claim in July 2020, then it would be the date of the claim, because more than a year has passed since the Veteran went to the doc.

If the reg says "within 1 year", should they award the claim back (up to) 12 months?

If the records indicated that the conditions severity was noted in medical records, shouldn't they automatically award the claim back to Jul 2019?

[Mr cue]

Yea but It would take a veteran take it alway to federal court.

I don't think the cavc would even address it

 

It the same as the va process is not to be adverse system.

Benefit of doubt

But we sure do get a lot of comp exams.

I just don't see any veteran pressing this button.

[broncovet]

Yes, powerslim.  The VA should comply with this and other regulations.  But when they dont..that is what appeals are for.  Im hoping Berta will chime in on the applicability of Cue to this.  However, Cue does work for when VA does not follow regulations.  

 

[Carl the Engineer]

My comment was an example similar to my situation, but after I posted, I looked at my records and it was 14 months from doctor visit and when I made the claim.

Now, it is interesting how they word things.  I see two options, either I'm out because not within 12 months, or one could surmise 12 months of retro.  Logic (I know we are talking VA) would dictate, that it would be 1 - 12 months of retro with a max of 12 months, but it seems to read that if you go longer that 12 months you are just out of luck.  Further digging in my part.

Now, is it worth it?  We'll in my case the boost from 20% to 40%, put my total from 90% to 100% P&T.

Well, simple math, and with my spousal A&A, at 12 months in 2020, it would be $15,324.96.

And, since they have been keeping 900 bucks from my military retirement (yes, the VA has kept some of my retirement) since March, I may have a new purpose to dig!

Thanks,

Hamslice