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Entitled to Backpay if Legacy Claim is Adjudicated and Veterans is Already 100% SC

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GulfWarVet1990

Question

Does anyone know if a person will get back pay (if granted)for an adjudicated legacy claim (on appeal, currently Judge is reviewing) if the person is already 100% sc.

Granted 100% SC for other claims.

2005 legacy claims pending, still waiting for Judge to review.  If granted will VA grant back pay? 

Thanks so much. 

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23 minutes ago, GulfWarVet1990 said:

Does anyone know if a person will get back pay (if granted) for an adjudicated legacy claim (on appeal, currently Judge is reviewing) if the person is already 100% sc.

Granted 100% SC for other claims.

2005 legacy claims pending, still waiting for Judge to review.  If granted will VA grant back pay? 

Thanks so much. 

Yes, it is very possible, but it depends on when you were granted 100% service connected. Example: If you were granted 100% in 2010 and your 2005 appeal is granted/awarded that means the VA will owe you from 2005 to 2010 retroactive pay. I am going through this ordeal right now myself. I was awarded two separate EEDs of TDIU retroactive payments. Of course, this only applies to any rating above 0%.  

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4 hours ago, GulfWarVet1990 said:

Does anyone know if a person will get back pay (if granted)for an adjudicated legacy claim (on appeal, currently Judge is reviewing) if the person is already 100% sc.

Granted 100% SC for other claims.

2005 legacy claims pending, still waiting for Judge to review.  If granted will VA grant back pay? 

Thanks so much. 

When I got my EED for TDIU back to September of 1985 in 2020, I was paid the difference between the 100% in the year paid and the rating in the year I had already been paid.  I went from 40% in 1985 to 50% in 1989 to 70% in 2009. I was paid the differences to my 70% award in 2009 in my April 2020 EED award by the Director, Compensation Services.  From 2009 to 2017 I was paid the difference between 70% and 100% awarded by the BVA on the "presumptive" rating.  

I will attach my analysis of the 2020 award.  It was off under $5.00 short so I did not quibble.

I think you can see how it is done with an EED.

20200708 TDIU payment calculation by Lem abrigded.pdf

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Posted (edited)

In my appeal before the BVA, I raised the Fifth Amendment of the Constitution, "taking of property without compensation," issue.  CCK has that to raise now if they see fit.

My argument is that all back pay should be paid at current rates.  You should be able to buy the same amount with the money in your shopping card as you would have then.  For example (not exact figures):  If a loaf of bread cost X$ in 1985, then the difference should have been calculated in current $ so that I could by the same X number of loaves of bread on the date the increase was made as the unpaid back date.  If a loaf of bread cost $1.00 in 1985 and in 2017 in cost $5.00 then I should be paid the $4.00 difference x how many dollar difference there is between the 1985 rate and the 2017 rate when I finally received the back pay to buy those loaves of bread.

That is clear as mud, but I think the smart people at CCK will get my drift.  Whether they will bring up a "Constitutional Question" that would result in a lot of "back pay" correction for a lot of living veterans and their substitutes, is the question.

Paid at the current rate in 2020, my back pay would have been over $200,000.00 more.  If I had been paid from 1985 the full 100% I would have been able to buy a house, in 1985, that would have been worth the over $200,000.00 more, in the Los Angeles area where I was living in poverty, in 2020.

Edited by Lemuel
correct error
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Its quite possible, but its up to the judge.  "If" the judge decides you were disabled "earlier" on the newly applied disability, then yes you could/should get back pay.  Its all gonna depend upon the facts of your case, and we have not reviewed your file.  

In my case, I was 100 percent effective date 2006.  I was appealing tdiu.  Eventually I was granted tdiu, effective date 2004, so I got 2 years of 100 percent back pay.  Of course, the details of my case are far different than yours.  

The effective date (which determines back pay) is the later of the facts found (which generally means the date the doc said you were disabled) or the date you applied.  I dont know what date you applied, and I dont know when the doc said you were disabled.  There are, however, multiple exceptions to this general effective date rule.  

Some of the exception to the general effective date rule are:

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

2.  If this was an application for increase.  (you should get an extra year)

3.  If new or relevant evidence was involved. (38 cfr 3.156).  I have no idea if you submitted new evidence within the one year period or not.  Example:  Lets say you went to a c and p exam on Dec. 1, 2023.  The doc said you were disabled but did not give a date.  So, the VA used Dec. 1, 2023 as the "facts found" date.  You hire a smart attorney.  He notices..Gee, you have had this same problem documented in your medical records since 2004.  So, he hires an IMO, who reviews your file, and notes that you were disabled in 2004, as so stated in his review of your medical records.  Then, your facts found could be 2004, 19 years earlier.  

This could be new and relevant evidence, as you were within the one year period.  

More on effective dates here:  READ TO SEE IF YOU MAY GET AN EARLIER DATE:  Its possible reading this could means thousands, or even hundreds of thousands of dollars to you.  Let us know if you see something that applies to you and we will try to guide you.  

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

 

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While I agree with Lemeul, in that Vets are shafted:  We pay interest on Taxes and Veterans loans, but get no interest from the government on money due to us.  Its not right.  However, CCK law "may" not be willing to take the VA on this one.  More likely, Congress would have to change this.  And change it they should.  

There is a "built in financial incentive" for VA to delay our claim.  Please allow me to explain with 2 examples, all of which benefit the government none of which benefit the Veteran.  

1.  The Veteran applies for benefits.  The VA takes 20 years to approve, and pays the Veteran, but not in money from 2024, but instead in 2004 dollars, which are paid to him in 2024.  He should get paid, (looking at 100 percent) comparing it to 2004 rates:

2004 rate $2299

2024 rate $3737.85.    

     This means the Veteran looses $1438 per month or $17,256 per year, times 20 years or $345,120 worth of interest...all because the VA delayed the Veterans claim for 20 years.  

2.  The Veteran applies for benefits.  The VA again takes 20 years, but the Veteran dies and the spouse is unable, to weak, or does not understand she must file a substititution of claimant.  

The Veteran and his family losses, including interest 3737.85 times 240 months (20 years) $897,084  

    In all cases, the VA makes money, lots of it by simply delaying the Veterans claim as long as possible, sometimes more than 20 years.  

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My application date was August of 1987.  My award date was September of 1985, nearly 2-year difference and based up on my last day of full-time employment.

The "extra-schedular" claim laid in the file, without being developed by the AOJ until it was remanded by the BVA in May of 2017.  I had a denial by the BVA in 1990 and had presumed it had been addressed in their blanket denial then.  There was no veterans appeals court then.

It went through a DRO review, from 2017-2020, at the Central Office (DC DVA Central not Regional) where it was recommended with approval to the Director, Compensation Services.  It was approved by the Director and Payment was made within a month after going back to the Central Office for finale execution.

Yes, that is a super long EED for TDIU.  But it demonstrates that it is based upon your employment dates, not claim date.  If you got less EED than I did, back to your last day of full-time employment, then you need to apply for an extra-schedular EED if it is a significant amount of money, and you were made to live poor for a while.

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