Claims filed when there is an OTH discharge

[d1ray]

In 38 CFR 3.1, claim is defined as "Claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.".  It goes on to define Initial claim as "(1) Initial claim. An initial claim is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. The first initial claim for one or more benefits received by VA is further defined as an original claim." If as in D'Amico v West, a claim is filed, and the discharge is OTH does it count as the original claim when a later claim is filed for SC disability and the discharge has been upgraded based on insanity at the time of commission of the act leading to discharge?

[brokensoldier244th]

Yes. The original claim is not adjudicated, i.e. as a claim- there is no rating decision as the claim is barred wither regulatory or by statute. An admin decision is made barring benefits, unless eligible for Chap 17 benefits, but thats only health for the specific contentions.

[d1ray]

Thank you!!!  I filed for educational benefits within 3 months of discharge.  An Administrative Decision was made that I was barred for 3.12(d)(4) Willful and persistent misconduct.  I have now filed for PTSD and there is direct connection to service.  I believe my effective date should be the day after separation based on 3.156(c)(1).  Is that correct?

[Chuck Haven]

I suggest you read the attached VA fact sheet on benefits and eligibility if you have a OTH discharge.

There is also a process for requesting an upgrade to your discharge but it will generally take more than a year to get a decision.  

Best of luck to you,

COD_Factsheet.pdf

[d1ray]

I have read that and I have gotten an upgrade through the BCNR.  On there it states that that "VA does not consider character of discharge until it receives a claim for benefits. A claim for benefits may be in the form of a request for medical treatment received at a VA medical facility, or it may be an application for compensation or pension received at a VA regional office. VA cannot make a final decision regarding entitlement to benefits until the character-of-discharge issue is resolved."

My first Administrative Decision was the result of filing for Unemployment Compensation at the VA office in San Fran.  On that form, I was asked if my separation was because of an injury or illness.  I answered yes.  This was done one week after separation.  A few months later, I filed for educational benefits.  Now that I have been upgraded and have SC for something else, I'm trying for the earliest effective date.  I believe that should be the day following separation.

[Rattler]

On 8/10/2022 at 1:12 PM, d1ray said:

I have read that and I have gotten an upgrade through the BCNR.  On there it states that that "VA does not consider character of discharge until it receives a claim for benefits. A claim for benefits may be in the form of a request for medical treatment received at a VA medical facility, or it may be an application for compensation or pension received at a VA regional office. VA cannot make a final decision regarding entitlement to benefits until the character-of-discharge issue is resolved."

My first Administrative Decision was the result of filing for Unemployment Compensation at the VA office in San Fran.  On that form, I was asked if my separation was because of an injury or illness.  I answered yes.  This was done one week after separation.  A few months later, I filed for educational benefits.  Now that I have been upgraded and have SC for something else, I'm trying for the earliest effective date.  I believe that should be the day following separation.

I forced the VA to make a decision on my "Charter of Discharge" on there own without the discharge upgrade. (An BCMR application is in the works as we speak.) Because of my PTSD due to MST they considered me to be insane at the time of my discharge. (I would not recommend going this rout as you will have to have all your ducks in a row. It took a tript to the BVA and a remand to force the RO to give the above decision and 3 C & P exams with a good PHD to get me ratted.) As I like you had open claims going back to 1983 I have thought about reopping the claims. (1983 and 1993)  Right now I will be happy to get back pay on 2018 PTSD / MST claim. It seams to me that I read a case that limited claims to the date you received your upgrade.

[d1ray]

I could not get them to do another COD determination for me.  They did one in 1973 and 1988 (which was a rubber stamp of the first one).  In 2003, they just referred to those.  In 2013 after my diagnosis, they still would not reconsider even though I had proof of my stressor from active duty.  It was then that I filed for the upgrade with the BCNR.  Along with two diagnoses under DSM IV and DSM V and a narrative of my insanity at the time of commission of the acts that lead to my discharge, I was able to get an upgrade to Under Honorable Conditions with an advisory opinion from the BCNR concurring.

As far as date of entitlement, I'm hoping for the day after separation since I did file a claim that required a COD decision with the first year.  My stressor is in my medical record since I was treated for a STD.  When they made the COD determination, they never requested my STR as they are supposed to.  That makes this record related to my claimed in-service event under 38 cfr 3.156(c)(1)(i) and the date of entitlement is to be governed by 3.156(c)(3).