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Does Va Pay Retroactive To Disability Date?


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7 replies to this topic

#1 gemsurf

 
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Posted 12 November 2010 - 04:36 PM

If tried many different searchs here and on the Board of Veteran Appeals search site but haven't been able to find a situation similar to mine. I have been 10% disabled since I left the Army in 1975 for residuals of a left knee injury. I applied because of pain and a permenant limp that was all documented in the original file. Fast forward to the 1990s and I develop low back and hip pain and begin being treated at the Boise VAMC. Eventually diagnosed with spinal stenosis, DDD, and DJD in both hips. I have 5 doctor entries in my records stating or strongly insinuating that these conditions are caused by my Antalgic Gait (Limp) caused by my left knee. I had no idea VA would consider these conditions secondary to my knee until my knee worsened and I began research to apply for an increase from the original 10% and stumbled into secondary disability references. I have been extremely disabled since Oct 2000, and unemployed since 2003 directly because of my back and hip problems and my VA medical records show the timeline and conditions and their severity in complete detail. I have little doubt that I will be rated enough to atleast qualify for Individual Unemployability from my file date, but I am preparing everything as strongly as I can just in case. I do have a C&P exam monday thru QTC.

My question is, if they find I am in fact disabled, and that it had it's start in 2000 or 2003, will the payments be retroactive to those dates or am I just out of luck for being ignorant? My records have 2 absolute nexus opinions and 3 others that infer they were caused by my limp dating back to Oct of 2000.

Thanks



#2 Testvet

 
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Posted 12 November 2010 - 08:37 PM

if you have not asked for these medical conditions to be SC then they will be ignored until you file a claim for them as secondary conditions the magic fairy will not apply intent they go with what is in writing if you have not yet filed for the secondary conditions then you need to do so ASAP they can infer that you were asking for all compensable conditions to be rated but they usually don't do it

#3 halos2

 
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Posted 12 November 2010 - 11:54 PM

The original date you put your claim in. Not whenever you received an injury...they are not mind readers, and could care less when it occurred. So the original date you put your claim in for your disabling condition is the date they use if there is a granting/award. Not another date you would like. Sorry, but that's the way it goes!!

When they read you file, THEY ACT ON ONLY THOSE YOU PUT IN FOR, not what else they may have found along their search.

Edited by halos2, 12 November 2010 - 11:56 PM.


#4 Philip Rogers

 
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Posted 13 November 2010 - 12:42 AM

I'm going to disagree w/halos2 and testvet. There is a slight chance they could pay retro but it'll take a long time and much argument . . . and this is just my opinion. Since you were already SC and rated 10% any treatment by the VA should have been treated as an increased claim request. I think you'd win, in the end, but it'll be a fight. Then again, I could be wrong.

pr

Edited by Philip Rogers, 13 November 2010 - 12:44 AM.


#5 gemsurf

 
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Posted 13 November 2010 - 06:14 AM

Thanks everyone for the comments. I have asked for the ratings to be retroactive to Oct 2000, but realize there is little chance of that happening. Once I get my ratings I might file an appeal and give it a run anyway. I have plenty of time to wrestle with them and from what I read in these boards, they deserve to get the butt whoomped whenever possible!

#6 broncovet

 
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Posted 13 November 2010 - 07:31 AM

The regulations state that the Va has to assume the Veteran is seeking ALL the benefits to which he is entitled, that is the max benefit.
Instead, the Va usaully assumes the Vet is seeking the minimum, and often gets away with it. In other words, if you applied for benefits from a back injury, but were also being treated at the VA for depression, the Va is going to assume you dont want to apply for depression, and "overlook" it on purpose.
Then if you are awarded benefits for depression, the Va is going to try to hood wink you on the effective date. However, remember the Veteran can apply for benefits, informally, at the VA docs office.

Sometimes the VA squiggles and squirms and says that you have to "identify the benefit sought."

The following is from a BVA case and may apply"

A "claim" is defined in VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. 3.1(p) (2008). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. 3.155(a) (2008). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits, whether formal or informal, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992); see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (holding that VA must fully and sympathetically develop a Veteran's claim to its optimum); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that VA must "determine all potential claims raised by the evidence"). Furthermore, if VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Servello, 3 Vet. App. at 200. Once the date of claim is established, the Board must determine, based upon the evidence of record, the date that entitlement to the benefit arose, to include, if possible, the date upon which an increase in disability actually occurred. 38 C.F.R. 3.155, 3.400(o)(2) (2008).An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. 5110 (b)(2) (West 2002); see also 38 C.F.R. 3.400(o)(2) (2008).

#7 gemsurf

 
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Posted 13 November 2010 - 10:30 AM

Thanks BroncoVet (Is that Denver or Boise State?) I have an entry in my med records from 2004 after I asked a VA doctor about disability that reads-
"

Pt needs to apply for disability -- needs basic

disability exam and has no insurance to get on outside- talked w/ Chreyl VSO

who told him that C&P was only for VA purposes.

"

#8 broncovet

 
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Posted 13 November 2010 - 11:55 AM

[quote name='gemsurf' timestamp='1289665857' post='225422']
Thanks BroncoVet (Is that Denver or Boise State?) I have an entry in my med records from 2004 after I asked a VA doctor about disability that reads-



Denver...Tebow, all the way..