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?

[john999]

I tried to get my discharge changed to a medical discharge since I spent 2 months in hospital.  No dice!  I could have hired a lawyer but it was not worth it.  98% of those kinds of appeals get denied.

[broncovet]

In most cases, there is "0" risk for a Veteran to hire an attorney, "even when" (or especially when) you think its a long shot.  

Virtually all attorneys who represent Veterans before the VA do so on a contingency basis.  What this means to you, is that 100 percent of the risk is on the lawyer, if you lose, you pay the attorney nothing.  

I have been made aware that the military plays dirty tricks, and hands Vets bad discharges to prevent paying benefits for PTSD.  This is often the case with "bad behaviour" discharges.  Duh..PTSD often causes bad behaviour, including, sometimes, self medicating with alcohol or drugs.  

I dont recommend giving up, many many Veterans on hadit or otherwise were denied for one or more reasons, and eventually wind up getting benefits "including" bad discharges.  

A great way to begin, is to contact NVLSP for your bad paper discharge.  Thousands of Vets have been wrongly denied due to "bad paper" really being PTSD:

https://www.nvlsp.org/news-and-events/news-articles/125000-veterans-with-bad-paper-discharges-wrongfully-denied-access-to-va-he

NVLSP will likely review your case, decide if it applies to you, and may represent you at no cost.  

[d1ray]

I have gotten past the discharge upgrade.  It was upgraded to General (Under Honorable Conditions).  I'm currently rated at 10% for tinnitus and I have other claims for PTSD, osteoarthritis in knees degenerative arthritis in my back among other things. 

What I'm trying to get clarity on is what constitutes a claim.  38 CFR 3.1 38 CFR 3.1(p) defines 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. (See scope of claim, § 3.155(d)(2); complete claim, § 3.160(a); issues within a claim, § 3.151(c)).  This literally means any claim for a BENEFIT that is administered under the VA.  The case I mentioned of D'Amico v West, his initial claim was for a VA Home Loan.  in another case from an appeal to the Veterans Board of Appeals (Citation Nr: 1319148), it states; Although, through no fault of the Veteran's, the current claims file is incomplete, the evidence available in the rebuilt file does reflect that the Veteran filed a claim for VA benefits within one year of separation from service, as evidenced by the May 1979 letter from the Waco RO indicating that the Veteran had filed a claim for "unemployment compensation" based on his military service. This claim for unemployment compensation was, presumably, a claim for nonservice-connected pension. While the actual claim which resulted in the sending of the May 1979 letter is not of record in the rebuilt folder, the Board points out that a claim for pension may be considered to be a claim for compensation. 38 C.F.R. ง 3.151(a). The Board does not have the benefit of reviewing the claim filed within one year of separation from service to determine what disabilities were identified by the Veteran; however, it is reasonable to conclude that the Veteran would have been seeking compensation based on his seizure disorder and hearing loss which were incurred in service and noted on his April 1979 separation examination. Accordingly, and in consideration of the heightened duty to consider the applicability of the benefit of the doubt rule, the Board finds that the Veteran filed an initial claim for service connection for a seizure disorder and hearing loss prior to May 1979.

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. ง 5101(a); 38 C.F.R. ง 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. ง 3.155(a).

In sum, the initial claim does not have to be a claim for disability as I understand this.  It just has to be a claim for a benefit that is administered by the VA.  Is that correct?