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Retroactive Pay - Following new legislation for Presumptive Conditions

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GulfWarVet1990

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Good evening, please excuse if I am posting on the wrong forum. 

In 2003 VA denied my claim for chronic sinusitis, re: environmental hazard conditions/burn pit during my deployment in theatre, Southwest Asia during the Gulf War.

Post new legislation re: VA recognizing Presumptive Conditions for Burn Pit Exposure, I resubmitted a supplemental claim. 

I was granted 10% for chronic sinusitis.  Effective 9/20/21

Am I eligible for retroactive pay as far back 2003 due to the new legislation?

I submitted a HLR late November 2021, as expected no action to date. 

Has anyone experienced this or have guidance on back pay.  

Thank you for your time. 

 

 

Edited by GulfWarVet1990
typo
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Berta posted:

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I wonder if past unappealed denials could create a valid CUE scenario-if the rating was NSC at least at 10%, I dont see why not--

but then again I also read at a site I do not trust (it came up in a search I did) that VA is reviewing past denied burn pit claims,  in the appeal process now to see if those claims should be reviewed under these new regulations.

In my view, there would need to be a new regulation "specifically addressing" retro payments under this presumptive, because, remember, "Cue" is always based on the laws "at the time", and a regulatory change does not mean CUE..There is no CUE error if the claim was previously adjuticated under the laws currently in force, at that time.   

While I think your famous "footnote one" specifically addresses Nehmer, Im unaware of such of a change in the new burn pit presumptives.  

However, there are specific regulations and case law which address favorable or unfavorable regulatory changes.  About 10 years ago, the NVLSP did a "list" of VARO common effective date error which was presented to DAV and made available online.  That list has been removed from the internet a long time ago..except in my memory.    This "list" included "regulatory changes", that (are often overlooked) by the VARO which would/could entitle the Veteran to an earlier effective date.  Essentially, the Veteran is supposed to get the more favorable of the "old" or new regulations, whichever is beneficial to the Veteran.  

Indeed, the benefit of the doubt going to the Veteran applies here:  The Veteran should get "the more favorable" regulation, whether or not the regulatory change was favorable or unfavorable.  

Example:  As you know "informal" claims were permitted up to about year 2019, when they were discontinued, and the Veteran must apply on the applicable form "as prescribed by the Secretary".  However, if a Veteran can document an "informal claim", years ago, that can be the effective date of claim "provided that" its consistent with "facts found".  Remember, the effective date is always the later of the claim date or facts found.  Vets are never gonna get benefits back dated to 1998, if he did not have any ratable symptoms until 2006.   Its a mistake people often make when calculating the effective date, they "forget the facts found" limitation.  Of course, the "facts found" means the date the doctor said your symptoms began.  

This is often a serious problem, which often takes an IMO/IME to fix.  You see, if you go to the doc for a c and p exam, and, even if this is a favorable exam, the doc often does not list "the date symptoms began".  When the doc does not list a date symptoms began, then VA presumes its the date of the C and p exam.  

Of course, this makes no sense.  It suggests you were fine and healthy..up until the minute and hour you went to a c and p exam, suggesting the doctor made you disabled.  Of course, the doctors exam unlikey caused your disabilities, your symptoms were present long before you ever went to a c and p exam.  

You did not apply for benefits "in anticipation" of getting disabled.  No.  You already had symptoms, and sought benefits FOR THOSE SYMPTOMS, you were not trying to "predict" a future disability by applying now.  (Tho, of course, people could try that also, unfortunately).  For the rest of us, we were already experiencing symptoms, when we applied.   The doctor simply documents those symptoms, and the etiology, but often leaves off the date symptoms began.  

Determing the date symptoms began could be a rather daunting task..it would involve reading and documenting the complete medical history.  It could involve "thousands of pages" of medical history.  

I doubt the doctor wants to read thousands or tens of thousands of pages of your history in order to give the Veteran the best effective date, tho, many Veteran favorable doctors may do just that.  

I was lucky enough to get as a c and p examiner "my regular" doctor since 2002, so he knew me well.  Im not sure VA does this anymore.  They usually dont want your regular doctor doing the c and p, in part, because many of us develop a rapport with our regular doctor, especially when you have seen them dozens of times over the years.  

So, my doc was very familiar with my history, and it was easy for him to document a date symptoms began.  Of course, he has been around long enough to know that date (facts found), determined by the doctor, is critical in obtaining the best effective date for the Veteran.  

The Va uses this to hornswaggle Vets out of effective dates all the time.  But, we can go to an IMO doc, and show him,.."see this exam in 1998?  It already shows I had symptoms back then".  

Or, sometimes the doctor will say something like, "The Veteran reported symptoms back as far as 1998".  

The VA "can not" automatically disregard Veterans statements "based solely upon" the fact he is an "interested party".  Instead, the Veteran "IS competent" to describe many symptoms, such as "I had a cough".  or "I broke my leg during military training".   This especially works if there is an xray in your file showing treatment for a fractured leg during the military.  

In other words, the board "renders a decision" if the Veterans statements are credible, and consistent with other known facts.  The board can reject the Veterans testimony, but they must give a reasons and bases as to why his testimony was not deemed credible.  

In my first board decision, the board stated that my testimony "was credible" because it was consistent with other known facts, such as medical records.  

In my view, future board decisions "can not" overturn this boards "finding of facts" (that my testimony was credible) UNLESS they give a reasons and bases as to how or why my testimony could, years later, become "not credible".  

In other words, the first board decision "finding of facts" remains in place..just like their decision on SC for xx conditions.  

The board "only has authority to adjuticate" the issues WE Vets give them, with the filing of a NOD, and addressing the issues to which we are in dispute of.  "Other issues", not contained in the NOD, are not under the Boards jurisditction.  Example:  A previous board fact finding of SC for xy condition.  That remains in place.  The VARO would need to "go through the reduction process" to undo that previous board SC.  

Source:  My own reading and experience, as a lay person.  

I think it will be supported by case law.  

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Bronco that is an excellent analysis of the topic on hand.  It does invoke a person to think outside the box, I feel.  The regulations and laws that apply to a Veterans claims are, well can I say countless, as new laws and language can change how disability laws will be interpreted and applied.  Wow, all of this is deep, IMO it makes a person look at things in a different light.  

I am really curious to see how this will affect retroactive benefits, more so effective dates and service connections.  Complications, I think Batman would be speechless on a pun, or would that be Robin,  ha ha I am loosing it.  I make myself chuckle way too much.   Too many voices and personalities, I guess.  To think I got plenty of rest last night and I only have had 1 cup of espresso coffee.  I think I will eat something maybe that will clear the mess up a bit.

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Yes both of these issues you mentioned are still in the VBM ( 2020-2921 Edition.)

 "This "list" included "regulatory changes", that (are often overlooked) by the VARO which would/could entitle the Veteran to an earlier effective date.  Essentially, the Veteran is supposed to get the more favorable of the "old" or new regulations, whichever is beneficial to the Veteran.  

Indeed, the benefit of the doubt going to the Veteran applies here:  The Veteran should get "the more favorable" regulation, whether or not the regulatory change was favorable or unfavorable. "

I know the common error list is definitely in my older VBMs but maybe not as detailed in the newer version-

It could be a simple error such as the wrong  diagnostic  code that manifested a negative outcome for a veteran.

Ratings info are found within Part 4 of the VASRD:

https://www.ecfr.gov/current/title-38/chapter-I/part-4

 

 

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Thank you everyone for, the information posted is very helpful.  I'd have to look back into my original claim to see how they rated "chronic sinusitis" it was denied, however, post legislation granted without protest. 

Edited by GulfWarVet1990
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Remember while this is great news, please, please, please,  if your claim has the evidence, the treatment and medical records and the doctors opinion relating the injury or disease , don't let the claim die, exhaust all your appellant options, it is one of a few ways to get things changed and get justice not for just generations of past and present but future Brave American Men and Women of this Country who will have served the Armed Forces. 

I think I need to keep repeating that in my head and heed to my own statements, but together is how we will win the fight.   It is a good fight. Let me rephrase, it is a most excellent and noble fight.

Just my honest 2 cents worth.  

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Good evening all, just checked ebenies, retroactive SC date granted, and a nice deposit to boot.  😀

Thank you everyone for sharing information and encouragement. 

I would encourage anyone to save your paperwork, hold onto any piece of paper the VA send you.

This helped my claim re: environmental hazard conditions-Gulf War.  

 

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