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How far back can compensation claims be made.

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Larry LAVICTOIRE

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I was approved on a PTSD compensation claim made 9 months ago. I was back paid for 9 months. That's great. I was given 30%.

Now I'm wondering, should I or can I try to get compensation from the beginning of this nasty issue, that started back in 1968 in VietNam? My local VO say's that I can't, period. All my issues started in 68 and just continued. My question(s): do I have the right to get involved in a legal firm that handles such cases and is it really worth the effort and trouble to do this and/or is this just a waste of my time in the end? I surly need some good advice and recommendations if any. 

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Welcome to Hadit.com Larry.

So a few questions. Do you have any records, Medical, than or current  that date back to 68 that diagnosis you with PTSD?  Or an other mental health issue?

We would also need to see your award letter. Is there anyway you can take a sharpie and mark out your Name, address, social security/service number and post it hear for review?

I don't understand the question. "Do I have the right to get involved in a legal firm that handles such cases? The answer is yes you need to be involved with the law firm if you are represented my them.

I don't think you are to that point yet.

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21 hours ago, Larry LAVICTOIRE said:

I was approved on a PTSD compensation claim made 9 months ago. I was back paid for 9 months. That's great. I was given 30%.

Now I'm wondering, should I or can I try to get compensation from the beginning of this nasty issue, that started back in 1968 in VietNam? My local VO say's that I can't, period. All my issues started in 68 and just continued. My question(s): do I have the right to get involved in a legal firm that handles such cases and is it really worth the effort and trouble to do this and/or is this just a waste of my time in the end? I surly need some good advice and recommendations if any. 

I will give my two cents here and take it for what it is.

When I started this and gave them all of my information, they gave me 10%.  I appealed as I felt it did not meet correctly with the rating schedular and they did a DRO review and gave me 30%.  I appealed again as they did not look at all of my docuements.  going to the BVA they gave me 50% but moved my date from 2013 to 2021.  

I did my 2nd stint at the BVA and then Bergmann&Moore reviewed my case and got a joint remand where they both the VA and my attorney said they did not look at all the documents and the effective date was not correct.  

Now I am back at the BVA to be looked at again with the joint remand.  I am shooting in the dark here, but I am hopeful to get 70% and back dated to 2013.  We will see what happens.

You have to take this into your own hands to make sure they are rating you correctly.  They will always try to lowball you the first time.  As Rallter said above, if you have the documents to go further back then go for it.  

VA disability ratings range from 0% to 100%, but for PTSD claims, the standard ratings are 0%, 30%, 50%, 70%, and 100%. These ratings are meant to capture the severity of your condition, and how much it affects your ability to work and take care of everyday life stuff.

  • A 0% rating indicates that your PTSD doesn’t interfere with your work or school or family life. This is not a common rating, because it doesn’t make much sense for someone with a PTSD diagnosis to not experience its disabling impacts.
  • A 30% rating means you have mild symptoms that may come and go, depending on your stress level. At the 30% rating medication and therapy can be effective at mitigating symptoms.
  • A 50% rating applies when your PTSD causes more pronounced problems at work and in your daily life.
  • A 70% rating means PTSD causes significant and frequent difficulties in your daily life, such as near continuous panic attacks. At this rating you also have trouble working and maintaining healthy relationships.
  • A 100% rating is rare, and applies to people who are not able to function in the workplace, and have become socially isolated. The technical term is complete occupational and social impairment.
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The Title 38 U.S.Code and 38 CFR regulations have been consistent and clear for many decades that the effective date of your disability rating/claim is the date you filed your claim OR the date you were diagnosed and/or treated for the service connected disability which ever is the later of the these two dates.   

Example here is my first VA diagnosis of Nam combat PTSD at a VA hospital was in 1985 and 85 was year I filed my first claim.  My actual PTSD combat stressors occurred in 1970 in Nam and the Army medical records in Nam and later Japan diagnosed me with combat stress and anxiety with prescribed medications, etc.

However, by law and regulation the effective date of my PTSD claim was 1985 and not 1970 when the actual stressor injuries and PTSD diagnosis occurred.

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

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I'm going to add my two cents, here.   They started me @30%.  Took about a yr ('89).  I started reading up on PTSD and read this Trauma Information Pages, Articles: Goodwin (1987) (trauma-pages.com and felt like someone had been looking over my should since VN, b/c it felt like my life since VN.  I appealed, over & over, then 50%, 70%, TDIU, 100%, schedular, with many denials during the appeal process and eventually won retro to my original claim date ('89).  Took about 10yrs+/-.  I appealed for A&A and HB on the last decision ('99) b/c it was required that the VA consider it.  That took another 21yrs of appeals but finally won HB retro to '89.  The main reason it took so long is that VA personnel rarely read your records further back than the previous decision.   My final BVA attorney, an Alex Humphrey or Humphries read the complete file and agreed w/the HB that my Vet Ctr counselor had described back in the '90's.  (we had an Atty Alex H who posted here for yrs, before he passed, and I like to feel that this was his son/daughter).

Read the requirements for the various percentages and decide which fits you.  Appeal within the required appeal period, if you think you should.  Hire a lawyer, if you want but understand that the process, no matter what, could be quite lengthy (yrs).  If the link doesn't work just look up Jim Goodwin Combat stress 1987.  If you have ever been treated at a VA for mental health or any other issues, it is supposed to be considered a claim, however the claims people never receive records from the medical section, unless you request, they be shared.  You could point out the diagnosis that was in the military records and try to do the claim on that basis b/c the VA is supposed to consider that you are always seeking the highest rating and they didn't consider that evidence, at the time they received it.  A long shot but if you are young enough and want too, I'd, personally, go for it.  Also, remember that Atty's, much like most people, want the most reward for the least amount of work.    Whatever you do never give up!!!

 

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Posted (edited)

It would take a complete review of your file to determine if you were entitled to an earlier effective date.  Many/most law firms will do just that for you, if you think you deserve an effective date prior to 9 months ago.  

While its true, the general rule for effective dates is "the later of the date of claim" or the facts found, there are many exceptions to that rule.  

SOME of the exceptions which COULD result in back pay (an earlier effective date) are:

1.  If you applied within a year of exit from military service.  

2.  If you applied before, and were denied.  But then were awarded for the same, or similar condition.  

3.  If you had an inferred claim for increase.  Example:  You sought benefits for hearing loss, but told your doctor you were out of a job and unable to find work.  This could be an inferred claim for increase (tdiu).  

4.  New and relevant evidence.  (Including new service records).  This generally comes after a denial.  

5.  Unadjuticated claims.  If you applied for benefits earlier, and VA never sent you a decision, you may well be in luck, but you may need some documentation, such as a letter from va or some proof from a vso that sent in your paper work.  A c and p exam may work.  

6.  Pact act, and Nehmer.  Your attorney can discuss whether this would help you or not, I dont know your periods of service or if this applies to you or not.  

7.  If you applied for pension.  

     These are just a few, I may well have forgotten some, that an attorney may point out.  My advice:  Go for it, you have nothing to lose.  

    Many of the exceptions to the effective date rule Dustoff cited (some of which I paraphrased, above) are here:

https://www.law.cornell.edu/uscode/text/38/5110

Read these over and see if maybe any of these apply to you.  I did not, however, list them all.  Some Vets, for example, were denied because of "bad discharges" (dishonorable, etc), and NVLSP may be able to help there.  PTSD Vets were often given "bad paper" (bad discharges), when they should not have been.  

 

 

Edited by broncovet
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I might as well throw my two cents in. The Pact Act would only go back to May 2022. Nehmer only applies in boots on the ground agent orange claims, so no help there.

I wouuld agree that the stressor for any PTSD claim would go back to the date of the event, but I never heard of a Vietnam Veteran winning a PTSD claim back to the in country stressor event. That is due to the VA's rule on the earliest effective date being the date of the claim or the date of diagnosis, whichever is latter.

Not to discourage, but to realistically look at the situation, I would say that the time would be better spent applying for an increase, over and over again and looking for secondaries that can be claimed.

To go from a PTSD rating at 30% to a 100% PTSD rating could take many years, or even a lifetime, if it ever even happened at all. 

As far as getting an attorney involved, the monetary incentive might be there, but the posibility of ever winning might put a damper on any pro bono posibility.

I have never heard of but one truly frivolous claim. That would be trying to claim a non service connected pension, when the veteran's dates of service  did not include at least one day during a period of war.

Second to that, there was a Army veteram who claimed that he was exposed to agent orange while serving as a Game Warden stationed at Fort Gordon Georgia, when the DOD and the VA swore that agent orange had never been used in the Continental United States, PERIOD. Well that one made me a millionaire, twice over!

Next in line is the case being debated and commented on in this thread. All I can say is good luck, and be as tenacious as that Georgia Game Warden.

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