Back pay

[prietosky]

Currently 100% PT,I summit a ssuplememtal claim for allergy rhinitis previosly dennied a few years ago,when got dennied i was only 50%  by that time, the question is if get approved for rhinitis do i cualified for back pay????

[Dustoff1970]

An appeal period for a denied claim is normally one year and it appears your new supplemental claim is in fact a reopened claim for same medical issue but with new evidence so I believe that NO you will not receive an effective date of this present supplemental claim that is the date you filed original claim for rhinitis.

Did you file an appeal to the first denied claim?  If so and this supplemental claim is in response to a VARO and/or BVA remand or decision then maybe you will be backdated to the original claim.  Not enough info provided by you.

If you have strong evidence that the VARO raters committed a CUE (clear and unmistakable error) error in their decision on your first/original claim for rhinitis then the effective date would be date of that original claim.  You can file a CUE claim at anytime for a VARO or BVA decision but they are very rare wins with few vets winning a "true CUE claim".

I am sure others will correct me if I am wrong.  Best to consult with a qualified VSO at a VA Regional office.  Their services are free of charge. Good luck to you.

My comment/opinion is not legal advice as I am not a lawyer, paralegal or VSO.

Edited July 5, 2023 by Dustoff1970

[pacmanx1]

2 hours ago, prietosky said:

Currently 100% PT,I summit a ssuplememtal claim for allergy rhinitis previosly dennied a few years ago,when got dennied i was only 50%  by that time, the question is if get approved for rhinitis do i cualified for back pay????

The simple answer is YES. The reason the answer is yes because the VA, if they reopen your claim, the VA is supposed to re-adjudicate your claim based on all the evidence of record and that means both old and new evidence.

I recently won a double EED (Earlier Effective Date) that the VA had to re-adjudicate my claim based on my entire record. Several years ago, the BVA awarded me an EED back to 1998 but the VARO low balled my rating percentage, and I filed a timely NOD on it, and it was denied so I had to file a new NOD that went to the CAVC, and they did a JMR (JOINT MOTION REMAND) order that ordered the BVA to re-adjudicate my claim based on the entire record. So, the BVA re-adjudicated my claim and increased my rating percentage and awarded me the higher rating percentage. I have been rated 100% schedular for well over a decade and a half so these two new ratings caused me to be granted two separate EED ratings of TDIU. 

If your claim/appeal is granted the VA is going to have to recalculate your combined rating over the entire time of your claim. I just posted this in another thread. Yes, it is very likely you should get a retroactive back pay. 

38 CFR 3.156

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record.

eCFR :: 38 CFR 3.156 -- New evidence.

Edited July 5, 2023 by pacmanx1

[Dustoff1970]

Here is another opinion/statement from a former VA DRO RATER

"Then there is the issue of the effective date which has two different components that must be considered.  When it comes to there being a previously denied claim, the first thing that must be considered is the basis for service connection.  If service connection is being granted solely due to the PACT Act, the August 2022, date is the earliest date for which service connection can be granted under the law regardless of whether or not there were any prior claims.   This is the law.

On the other hand if the PACT Act is not a factor with regard to entitlement to service connection (ie., it is being granted on the basis of direct or secondary service connection rather than on a presumptive basis under the PACT Act), then an earlier effective date on the basis of a previously denied claim could be in play.  It would depend on whether or not the previously denied claim had become final or if it was determined that there was a CUE in that denial.  If not, the effective date would be the date of the new claim.  I think that this situation would be relatively rare."

My comment/opinion is not legal advice as I am not a lawyer, paralegal or VSO. 

[pacmanx1]

On 7/5/2023 at 1:41 PM, Dustoff1970 said:

An appeal period for a denied claim is normally one year and it appears your new supplemental claim is in fact a reopened claim for same medical issue but with new evidence so I believe that NO you will not receive an effective date of this present supplemental claim that is the date you filed original claim for rhinitis.

This statement is true, but it is still off a little. Keep in mind that a veteran can reopen a claim at any time as long as the veteran have new/material and or relevant evidence that supports a claim that has already been decided. Some veterans think that the only way to win an EED (Earlier Effective Date) beyond a years’ time is to file a CUE claim. 38 CFR 3.156 specifically speaks about new, material and relevant evidence beyond a years’ time that may or may not be a CUE claim, but the veteran can still win an EED if the evidence supports the claim. Under 38 CFR 3.156 there is no time limit, but it seems the VA is trying to change this but even the new regulations revert back to 38 CFR 3.156.

[broncovet]

Let's go back to the original question"

Quote

Currently 100% PT,I summit a ssuplememtal claim for allergy rhinitis previosly dennied a few years ago,when got dennied i was only 50%  by that time, the question is if get approved for rhinitis do i cualified for back pay????

Short answer:  We dont know and cant tell from your statement.  Reasons:

1.  If you are awarded 50 percent for Rhinitis, it may or may not increase your combined disability rating.  For example, if you are 100 percent and get awarded another 50 percent, your combined rating is still 100 percent, and no increase and no back pay.    However, if your additional 50 percent, combines in such a way that you meet the schedular criteria for SMC S, then you should get back pay for SMC S, which is around $450 per month, if you meet the criteria.  The criteria for statuatory SMC S, is "a single 100 percent rating" plus an additional combined 60 percent, seperate and distinct. 

      We dont know whether or not you would qualify for SMC S, we need more information..we dont know if you have a single 100 percent rating or not, for example, and we also dont know if you have an additional 60 percent combined, nor do we know if those ratings are seperate and distinct.  

2.  Effective dates.  Again, we dont know because we have not reviewed your records.  Your effective date is the later of the "facts found" (the date the doc said you were disabled) and your claim date.   While this could mean an earlier "claim date" that may not even matter, based on what the doc said.  As an example, if your claim date was Jan. 2020, But your doctor stated you did not experience the symptoms until July 2023, then you would not be entitled to back pay. 

      For the reasons above, we dont know enough about your claim to make any more than a WAG (guess) because we just dont know what your records says about the above.  

      If you would like to provide more information, we can give a better answer.  

     

Edited July 9, 2023 by broncovet

[pacmanx1]

I think the confusion is the OP (Original Post) was referring to the time prior to his/her 100% rating. If the veteran was rated at 50% and was denied benefits and filed a reopen/supplemental claim with new/material or relevant evidence that supports that denied claim, then the veteran should be owed benefits from the time of the original claim up to the time the veteran was awarded 100% P & T if the reopened/supplemental claim is granted.

Example: Veteran was rated 50% in 2010 and filed a claim and was denied. In 2018 the veteran was finally granted 100% P & T. Now in 2023 the veteran files a reopen/supplemental claim with new/material and or relevant evidence that supports that the veteran should have been granted the denied claim in 2010, and the VA grants his/her claim, then the VA owes the veteran benefits from 2010 to 2018 for the difference of the rating decisions. The problem I see is that the VA could say that the effective date is 2023 (NO BACK PAY) and the veteran would have to file a new appeal to get his/her correct effective date.

This is what happened to one of my claims and that not only did I get an increase in my rating percentage, but the new rating percentage also caused my combined rating decision to increase twice causing me to get an EED for TDIU for my initial rating then a second EED for my increased rating.