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]

The documentation from the Discharge review board says that once they make a determination it is final. Occasionally new information will come to light that allows VA to make a new determination, but the information we rely on is about 99% what we have to request from the Service anyway (court martial/JAG notes, shore patrol, CID, etc) and the Discharge Board would have already had access to that, often easier and faster than we do. So, its not often that a character of discharge changes after a DRB because they already rule based on the same information we would have had to get from them.

[Rattler]

I actually went through 4 COD's 1982 through 2019.  It than went to the BVA who remained it back to the RO because of bad narrative in the last C & P Exam. That's when I was sent to a real PHD who had experience and clinical in PTSD / MST.  He was the one who did 2 DBQ's and 1 MO.  Those got me my COD & 70% PTSD 100% UI T & P.

If you know how or you have a VSO who knows how you can get it without a discharge upgrade.

Edited August 22, 2022 by Rattler767

[broncovet]

Effective dates are rather complex.  Yes, you are correct that your effective date can be the date of discharge, if you applied within a year of discharge.  

But, the effective date is always the later of the facts found or date of claim.  

As an example, if you applied the day after discharge, but no doctor diagnosed you with the illness until sometime later, the facts found could be that you did not get the illness until later, and you only get paid for the illness that is documented.  In other words, "when your symptoms began".  

If you have a recent decision and you think it has the wrong effective date, you can consult with a veterans attorney and see if he thinks you should get an earlier effective date, "to include", as you mentioned, benefits backdated to the day of discharge.  

Did you apply for VA benefits within a year of discharge?  No, applying for education benefits does not count.  You would have had to applied for a disability of ______ condition, not eduction benefits.  

[d1ray]

My error

Edited August 15, 2022 by d1ray
Not my post

[john999]

BCMR

 

              These guys can be decent or real bastards in my experience.  There is no benefit of doubt. You are dealing with mostly hardass military types.  I went through a couple of BCMR appeals.  I won two and lost a few.  Right after and during Vietnam is was not that hard to get a discharge upgraded.  After that it got real hard IMO.

[Rattler]

On 8/15/2022 at 1:06 PM, john999 said:

BCMR

 

              These guys can be decent or real bastards in my experience.  There is no benefit of doubt. You are dealing with mostly hardass military types.  I went through a couple of BCMR appeals.  I won two and lost a few.  Right after and during Vietnam is was not that hard to get a discharge upgraded.  After that it got real hard IMO.

I had the same problem until they changed it through the DOD letters the last of was dated 2018. I am working on the discharge now with a Veterans Consortium Discharge Upgrade Program Attorney.