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

[broncovet]

Excellent question, Hamslice.  The only way to get a certain answer, in your case, is for you to invest a buck in a stamp and envelope, and maybe a few hours of your time doing a great job typing up a cue or appeal, and mailing it in.  (Or send it online if you dont have $1 to spare).  Ask us for help, if you so decide.  

And, in 2months to 5 years, you could well see a deposit for your 15 grand.  

Remember, the VA is required to give Veterans the benefit of the doubt.  

I confess, that I dont know WHICH of your senarios resulted in my extra year of retro.  However, the regulation says, "up to 1 year".  This is one of those interpretations that are ambigious:  Does "up to one year" mean you get 12 months if you filed after 14 months, or does it mean you are out of luck because you did not file "within 12 months"?  

I know Im biased (for the Vet), but I interpret it to mean you would get 12 months retro, because "up to one year" does not EXCLUDE you if you waited More than a year.  Example:

A. I agree to hire you to do landscaping for me and pay you "up to $1000".   You send me a bill for 1200, and I pay you the $1000 as agreed.  Why?  Well, I agreed to pay "up to 1000" but did not exclude paying you 1000, even if it costs more than 1000.  

B.  The obverse of this example:  "If you can landscape my home, like we talked about, for $1000, I will pay you up to 1000.   However, if it cost MORE than 1000, I pay you zero."  

Different wording gets different results.  Since the regulation does not exclude filing over a year, it only excludes one year as the max payment.  

The benefit of the doubt goes to the Vet, means that senario A goes.  

 

[Carl the Engineer]

It also would add a year (or subtract, depends how you are counting) to the Veterans 5, 10 and 20 year rules.

When the Veteran gets shortchanged, it effects more than just the obvious.

Sneaky Bastards,

Hamslice

 

[Vync]

I added a blog post regarding increases a while ago, but referenced 38 CFR 3.400 which is long-winded, but also clarifies the one year window. I personally have filed for increased ratings under this before the COVID delays. My proof was from non-VA medical treatment records. Simply filed a supplemental claim form, provided copies of the medical evidence with signed release of information forms, and described how I met the increased rating criteria. However, depending on the type of disability and their current rating protection status, the VA might bring the veteran back for re-eval at a later date.

 

[Vync]

It appears (b)(1) applies to initial claims instead of increases. In cases where a veteran won a claim before getting out or won a claim within the one year window and got worse, (3) would apply regarding the increase.

 

 

 

[pacmanx1]

38 U.S. Code § 5110 - Effective dates of awards

(a)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

 

I personally think that the VA gets away with screwing up veteran’s effective dates more than we even imagine. Anytime when a veteran files a claim and the regional Office sends the veteran to a C & P exams and then gives the veteran an effective date of the C & P exam should be criminal since the veteran filed his/her claim months before and the regional office uses the C & P exam as the effective date cheating the veteran out of benefits or when a veteran files for TDIU and the VA grants the veteran 100% scheduler P & T and deems the veteran TDIU claim moot.

 

38 U.S. Code § 5110 - Effective dates of awards | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)

Edited November 3, 2021 by pacmanx1

[63Charlie]

That's a fact, Jack.