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VA Back Pay, or Retroactive Benefits

  1. What is back pay, or retroactive benefits?
  2. Why Effective Dates Matter
  3. Exceptions to Effective Date Rules
  4. Increased Ratings & Back Pay
  5. Rating Reductions & Back Pay
  6. Effective Dates When Reopening a Claim
  7. Changes in VA Law
  8. DIC Benefits & Back Pay
  9. Clear and Unmistakable Errors (CUE) & Back Pay
  10. Back Pay in Nehmer Cases (Agent Orange)
  11. How does VA calculate back pay over long time periods?
  12. Back Pay and Compensation Offsets or Recoupment
    • Separation Pay
    • Severance Pay
    • VA Pension
    • Retirement Pay (CRDP and CRSC)
  13. Appealing an Effective Date

Video Transcription.

Maura: Hi everyone. Thank you for tuning in today to out facebook live discussion. My name is Maura Clancy. I’m here at Chisholm Chisholm & Kilpatrick in Providence Rhode Island. I’m here with Mike Lostritto and Christian McTarnaghan. Today we’re talking about VA back pay. So we’ve got some topics prepared that we’re ready to discuss pertaining to issues surrounding how VA decides what kind of back pay you’re entitled to. But just as a preliminary matter, we are going to be posting additional materials that we think are relevant to today’s discussion in the comments feed next to this video. So like I said before, we are going to be touching on a bunch of different topics, some of which could be their own Facebook live discussions and have been in the past. So if we find that materials might be helpful to you, we’ll be sure to post those for your review and for your reference. If you have questions at any point during today’s discussion, please feel free to also post those on the comment section, we’ll do our best to either respond directly in a message or perhaps even discuss the question today while we are all here talking about back pay. The last thing is definitely feel free to reference our website for additional materials. That’s where everything is saved. You can find our blog posts and past videos that we’ve done at www.cck-law.com. So, without further adieu, Christian, can you tell us just generally speaking, to start us off, what is back pay and why we refer to it as retroactive benefits?

Christian: Sure, absolutely. So back pay or retroactive benefits is money that a veteran becomes entitled to because of some sort of grant when the effective date — which will get into explaining a lot of issues surrounding effective dates — means that the amount of money they were getting paid wasn’t what they should have been getting paid. So if the veteran, let’s say — I was used, like to use hypothetical — so back pay would be if the veteran was given a 30% rating but then some way down the line, somewhere down the line, it was decided that they should have been in the 50%. So back pay is the difference between the 30 and the 50% for the number of months that you were rated basically incorrectly.

Maura: So pretty much the idea is that, if the entitlement arose — and that’s another idea that we’ll talk about later — but if your entitlement to the benefit you’re seeking arose prior to the day of the decision that grant you those benefits, you need to be compensated for those past months, sometimes even past years —

Christian: Sure.

Maura: — depending on how long the claim is pending as if you are being paid all along.

Christian: Yes. That’s what you should have gotten but you didn’t get.

Maura: Got it and Mike, why don’t you tell us about what effective dates are and why those are so important and why we’ll be talking about them a lot as we discuss back pay?

Mike: Sure. So effective dates really are important in determining the amount of back pay that a veteran will receive. It’s essentially the date from which the benefit that’s been granted was warranted or from which the benefit is entitled from. So basically, the general rule for determining an effective date is that it’s the date that VA receives the veterans claim or the date that entitlement arose whichever the later date is. So it’s kind of a common situation to help clarify that general rule is, a veteran is diagnosed for the condition but didn’t file a claim for maybe 5 years after the diagnosis of that condition. They may not be entitled to benefits until the date that VA received their claim. Not necessarily the date that were actually diagnosed with the condition or that the date when the in-service accident or occurrence occurred. So it’s really an important distinction in determining entitlement.

Maura: I think your point, Mike, about the date that entitlement arose and also the date of claim, those can get a little bit tricky to figure out but I think the scenario that we see more often — and maybe you two can weigh in on this — is typically the effective date is going to be the date of the claim.

Mike: Yes.

Christian: Yes.

Maura: So usually, entitlement, hopefully will be established by that point but a question that we got is why can’t it go back to earlier? Why can’t it go back to the date of my in-service accident or the date of my diagnosis 10 years ago? It goes by the ladder of the two pursuant to this regulation and so typically, you wind up with an effective date being the date of your claim.

Christian: Yes, that’s it.

Maura: Would you say that’s fair?

Christian: Absolutely.

Mike: That’s exactly.

Maura: In addition, the effective date being the date of your claim means that for however long it takes VA to work on that claim, say it take them 2 years to ultimately decide on the claim and grant you benefits, that 2 years based on the effective date of the date of claim is going to set your back pay amount.

Christian: Yes.

Mike: Right. The idea of course being that, as Christian, alluded to before, the veteran really was entitled to this benefit that they weren’t being paid. So now, this back pay, retroactive pay, is being awarded from the date of the effective date to compensate the veteran for essentially missing out on receiving payment that he or she otherwise should have received in the first place.

Maura: Make sense and there are some exceptions to the general rule that the effective date is either the date entitlement arose or the date of claim. One of those is if you file a claim within one year of your discharge from service. Christian, can you tell us a little bit about that exception? What’s the effective date in that scenario?

Christian: It’s going to be the day after you are discharged. You can’t receive the VA benefits as a veteran while you’re in the service so if you, like you said, Maura, file a claim within that one year, it’s not going to be the date of claim — which you’re going to hear over and over again — really, as your effective date, it’s going to be the day after you were officially discharge from service.

Maura: Mike, what about increased rating? So, we’ve been talking about claims generally, are the rules for effective dates and therefore back pay, any different when we talked about increased rating claims?

Mike: So, if a veteran files an increased-rating for a condition that has been granted many years ago, the same rule applies generally speaking where the new effective date will be the date that VA received the veterans claims for an increased-rating of that condition. So, that’s why it is important that a veteran submit a claim for an increase as soon as they feel that there, the severity of their condition has worsened because VA often times is going to grant a benefit. If they do grant a benefit, they’ll grant the benefit back to date of that increased-rating claim.

Maura: Christian, what happens if you file an increased-rating claim and say you’re waiting for VA to adjudicate your claim for years, maybe say, 3, 4, 5 years. If your disability that you have claim’s an increased-rating for the one that’s on appeal, is still continuing to worsen throughout this time period, is there any way that you could receive even more retroactive benefits to account for that worsening?

Christian: Yes, absolutely. So, as we all know and unfortunately, the veterans that are involved in this process watching, it can take a really long time to get a claim finally adjudicated and even longer to get it granted. So there’s a concept of stage ratings. So, you file an increased-rating claim in 2010, you get a rating decision and then you all get all the way to the board. What the board is supposed to be doing is looking to see how severe your disability was throughout that — now I’m forgetting my hypothetical — 5-year period, if it was at a 30% level for a year and a half and that at a 50% level for another year and then the last part of the time period, it was at 70. You can be granted all of those ratings and then they have to calculate the back pay based on those three separate and distinct ratings during that 5 year time period. So it’s not like you have to say, you should tell VA that it’s worsening but they don’t see evidence of worsening during an increased-rating claim as let’s say, a new claim or rather they shouldn’t.

Maura: Right because you have already filed the increased-rating.

Christian: It’s already on appeal.

Maura: Right.

Christian: Exactly.

Maura: So sometimes when VA’s adjudicating increased-rating claims they will seek additional medical evidence and try to develop that claim and sometimes that evidence might reveal that the disability is at varying stages. So if you see that in your case, it’s important to think about how that will change the effective dates possibly for different stage ratings, as we’re mentioning. We do have a question from Steven. Steven, thank you for your question today. In talking about back pay, Steven wants to know how much of the back pay that a veteran receives can an attorney legally take as their fee? Does anyone want to take this one?

Christian: I sure, I could try. I guess what’s most important is when you’re working with a representative or an attorney to understand the agreement that you have come to. Because there is a — I think it’s by a regulation, correct me if I’m wrong — VA will withhold when there’s an accredited, working with an accredited agent or an attorney, 20% of a retroactive benefits, if you have that agreement of course, for VA to withhold for your attorney. I don’t think that there’s any limit other than what a veteran would be willing to pay their attorney. But I don’t actually know the answer to that question.

Mike: I think there are certain limits that are deemed reasonable automatically.

Christian: Okay.

Mike: I believe that it’s one thirds of 33 point whatever it maybe percentage, I believed is automatic deemed reasonable if it’s below that level. That being said though, as Christian said, it’s really important for you to understand the agreement that you sign with a representative and inquire and have questions about that.

Maura: Right, I agree. So I think there, I think by regulation as Christian said before, there is a ceiling, that one third ceiling.

Christian: Okay.

Maura: So, it can’t exceed that amount but to Christian’s point, all agreements are going to be different so it’s important for you to understand what you’re agreement is. Sometimes there will be additional provisions about cost and things like that, that could change the amount of benefits that can be recouped by an attorney or, it’s whatever the agreement says but there also the protective regulations so that attorneys can’t charge say, 50% or 75%. That would be unreasonable in the regulation recognizes that. So before we were talking about how increased-rating, effective dates are treated pretty much the same as other claims. The effective date is either the date entitlement arose or the date of the claim. But we were talking about stage ratings if a condition fluctuates in severity during the rating period. But, conversely, Mike, sometimes VA, decides to reduce rating. Meaning that they decide that a condition has actually gotten better and so the assigned rating needs to be lower than what it is. How does the effective date work if VA successfully reduces a veteran’s rating?

Mike: So typically speaking, reductions occur when VA receives evidence usually through a CMP examination or a compensation of pension examination and they review the examination. Maybe they review some new treatment records and they decide, VA decides that your condition has improved. So, what they will typically do then is go through a process of proposing to reduce your benefit. There’s a period to respond to that proposed reduction and then if either the veteran doesn’t respond or they do respond and VA, nevertheless decides that a reduction is warranted, we’ll go ahead and finalize that proposed reduction. At that point, they typically set a date for the reduction to take effect. So sometimes we’ll see veterans that went to a compensation and pension examination for an orthopedic condition, it shown that the orthopedic condition improved based on the results of that examination and VA will reduced based on the date of either the examination or maybe sometime in the future. So I think it’s important that if a reduction or proposed reduction is issued in your case that you, number one, certainly respond but also understand that if the rating reduction is finalized, then your compensation will be reduced as of the effective date of that reduction.

Maura: I think it’s a lot more common too, to see the scenario where the proposed reduction doesn’t take place until after all that documentation has been sent to the veteran. So it’s usually not retroactive and that it would go very far back. At least that’s what we see more often. They’ll propose to reduce it right around the date of the decisional documents go out. So that’s the important point to be aware of what they’re suggesting as the proposed date because that’s going to determine whether your monthly payments are going to change the future and how far back into the past they could be changed depending on what VA’s proposing. So that’s a tricky subject. Again, I think that’s that a subject that we’ve tackled in other blog posts and other videos. So definitely, feel for the reference those, if you are in the circumstance where VA is trying to reduce your rating because there’s a lot of procedural steps that they need to go through that they don’t always get right —

Christian: Absolutely.

Maura: — that might be right for a challenge at some point in that process. Again, everyone, we’re here this afternoon at Chisholm Chisholm & Kilpatrick in Providence Rhode Island talking about back pay. My name is Maura Clancy. I’m here with Mike Lostritto and Christian McTarnaghan. So far, we’ve talked about, we focus on what it means to have a certain effective date for a claim or for a reduction because that’s going to be very crucial in determining what amount of back pay you’re entitled to, if any. So, continuing on with these topics that we have, Mike, if a veteran is reopening a claim that was previously denied — sometimes this can be a point of confusion — there might be an old claim that was denied and appeal was never filed and then the veteran later seeks the same benefits in the new appeal. How does the effective date work in that situation?

Mike: This is an important point. Generally speaking, there are exceptions to the rule, but generally speaking, if a veteran receives a final decision and does not appeal within the necessary time frame of that decision and would like to, later file a claim as you said to reopen that condition and seek service connection for that condition, the effective date will be assigned from the date of the new claim that’s submitted to reopen. So just because veterans have submitted claims many years prior, doesn’t necessarily mean that they’re going to be entitled to an effective date that dates back that far. So, I think it’s, in determining and analyzing your specific case, it’s important to remember that you really want to look to the date of claim for reopening the condition and that usually governs.

Maura: Great points and Christian, sometimes we see a change in law that has an impact on the effective dates for benefits. So if VA changes the law that makes a veteran eligible for benefits that before the change in law, they were not eligible for or not entitled to, how is the effective date established in that situation?

Christian: Yes so and also one point I want to make — we’re speaking in generalities.

Maura: Yes.

Christian: — because there are — and we deal with this every single day — there are a lot of issues that come into this. So let’s just — I just want to make that clear.

Mike: It’s a good point.

Christian: In this particular, the answer to this particular question, is going to be extremely general because this is an incredibly complicated or can be, area of the law. Generally, when there’s a liberalizing law changed, that means that like you said, it’s easier to get a certain benefit or something to that effect. If you file a claim based on that liberalizing law, within a year, I believe, the effective date can be the date of the liberalizing law when it went into effect. After that, it’s going to be no difference that filing an initial claim that we were talking about before. The increased-rating, it’s going to be the date of the claim.

Maura: Right, makes sense. So as we mentioned before, the default typically, we’re talking about the date of the claim a lot but we’re trying to highlight some of the areas where it gets a little confusing and where there are some exceptions.

Christian: Absolutely.

Maura: So thank you for explaining that one. That’s a tricky one. That’s tricks me up a lot, honestly. Mike, how do effective dates work for DIC benefits? So this is another situation where sometimes it can be difficult to parse out what the effective date should be because DIC benefits, dependency and indemnity competition benefits are awarded to surviving spouses of deceased veterans. So that can get tricky. Can you tell us a little bit about that?

Mike: Sure. So the common situation is, unfortunately, the veteran passes away and his or her spouse wishes to be subbed into the claim essentially and files a claim for as Maura said, DIC, dependency and indemnity compensation. The effective date rules in this area are essentially if the surviving spouse files the DIC claim within one year of the date of the veteran’s death, then if DIC is granted, the effective date will be the date that the veteran actually passed away. However, if the surviving spouse — in this is hypothetical — files to claim for the DIC after that one year period then just like we’ve been talking about all afternoon, the effective date will be the date of the claim. So again, it’s really important that if this is a claim that you would like to file to do so within that one year time period if possible, to achieve the earliest possible effective date for that particular benefit.

Maura: Okay. So it’s not just the default, it’s the date of the passing of the deceased veteran.

Mike: No, it’s not and that’s a good point I think this is scenario where unfortunately, veterans and their spouses gets tripped up. It’s not always the date of death. It can be but again, that’s only if the claim for DIC is filed within the one year period post death.

Maura: Great and Christian, can you talk to us about clear and unmistakable errors that are found in VA decisions we call these CUE claims or CUE allegations for just as background if you allege that there is a clear and unmistakable error in the decision, you can bring that up at anytime after the decision is issued. So, say, a veteran says that they believe there’s clear and unmistakable error or CUE, in a decision that was issued 20 years ago. Say that they’re successful in persuading the VA that there was a CUE on that decision, how does it work if they’re entitled to retroactive benefits? What’s going to be the effective date for that?

Christian: So talk about [cross talk]

Maura: Generally speaking.

Christian: Yes, generally, talking about complicated areas of the law. So the answer to that question generally is pretty easy. Basically, the VA should not have made the mistake and when a veteran either on their own or through representatives, files a CUE motion alleging that there was clear and unmistakable error which is a completely undebatable error, it’s as if that decision was never made improperly. They basically put a new correct decision in the old decisions place 1977-1980, 2004 and it’s as if it never happened. So like we were talking about before, it’s as if you got a grant with an effective date all the way back to the date of the decision. It’s if of course the cue motion is successful and you got a grant. So just like we’re talking about before, if your overall level of disability is increased as a result of that cue revision then you’re going to get the same back pay as you would if there would be a grant. So it would be the difference between what you’re rated at then and what you’re rated at now, correctly for that many months and it can be years.

Maura: Right and sometimes if it’s a very long period of time, there is a possibility for a substantial retroactive of payment.

Christian: Absolutely, yes.

Maura: Since we’ve stuck with you pretty much for the complicated stuff, we’re getting to more complicated stuff, you’re aware my thought. Christian, there’s some differences and there’s some more complicated nuances when it comes to back pay in Nehmer cases.

Christian: Yes.

Maura: Tell us about that a little bit.

Christian: Sure.

Maura: Just briefly because I believe that we have some materials on Nehmer that we will make available. We don’t want to spend too much time on in but it is important to know I think in this discussion generally.

Christian: Yes. Well, this can be a seminar talking about Nehmer but keeping it incredibly simple. You have to meet the requirements of the Nehmer class and one of those requirements is being boots on the ground of Vietnam. So basically, if you have filed a claim between 1985 and 2010, I believe and meet the other requirements of Nehmer one of which is boots on the ground, you can and you have of course, the disability and you’ve met all the elements, diabetes for instance, right, is linked to Agent Orange exposure, then you should have your claim granted all the way back to that initial. So, all of everything that we’ve talked about goes completely out the window when you’re talking about Nehmer claims in so far as when your claim is effective from because if you’re thinking about some of the other rules, the date and time it arose would be quite later but none of that applies in Nehmer claims if you’ve filed your claim in some sort of way between that time period and you have a presumptive condition or a condition that’s caused by your service in Vietnam till you exposed to Agent Orange, you’ll get the benefit of that effective date.

Maura: Okay so it’s safe to say that Nehmer is something that only helps?

Christian: Yes.

Maura: It can maybe get the effective date sooner than the claim?

Christian: Absolutely.

Maura: If it applies, if all the other requirements are met.

Christian: Yes.

Maura: Also as we’ve been alluding to or sort of expressly stating throughout this discussion, these are pretty complicated areas.

Christian: Yes, absolutely.

Maura: So if you think that you have a case that falls into some of these categories, we would definitely recommend getting in touch with the representative.

Christian: Yes.

Maura: An attorney, someone to help you out. Our colleagues at DAV, anyone that can help you navigate the complexities of these things —

Christian: Absolutely.

Maura: — because they’re very difficult. Effective dates on their own can be tricky to figure out, never mind when there are liberalizing laws and rating reductions and Nehmer issues that are flying around. So, highly recommend getting some assistance if you think you need it.

Christian: Yes.

Maura: Again, we’ll just remind our viewers that we’re here today at Chisholm Chisholm Kilpatrick in Providence Rhode Island talking about back pay. We still encourage you to post any questions that you might have. Any comments, feed next to this video and additionally, please, review the comments at your convenience to see if there’s any information that we posted there that might be helpful to you. We do have some blog posts in a lot of the topics that we’re talking about today. So we want everyone to be able to take advantage of those materials that we’re posting throughout today’s discussion. Now, we’re going to talk about compensation and offset. So, not just back pay but when is back pay limited by receipt of other benefits and a whole lot of things that continue to get trickier and trickier as we move along. So, Christian, just start us off briefly, how does VA generally calculate back pay over long periods of time? So say, that VA decides that a claim that’s been on the PO for several years, can be granted, they set the effective date years in the past. How are they going to figure out what the veteran is entitled to for a retroactive award?

Christian: Well, they would have to go to the historical cables that show how much a certain rating was worth or how much you were supposed to pay the veteran at that time because in 1977 the value of a 10% rating is much different than it is today. So basically, they go back in time for this amount of time, 10% was worth X amount of money and then from this period of time, a little later was worth this amount of money. They add it all up and then that’s the check that they got.

Maura: Okay. So good thing to know that they are adjusting these things year to year if the compensation rates change.

Christian: This should be all on VA’s website. When I’ve had to do that in the past or I was just curious, I’ve gone to VA’s website and they have a lot of the historical tables and will be able to point you towards that so to help you find it a little bit more easily. To get some sort of idea of what you might be entitled to so you’re not confused when maybe you’re using a 2018 dollar amount when it goes back further, it’s going to might be a little bit less.

Maura: They can be going back very far in the past in terms of calculating retroactive payments because as we both, as we all know, there is no cap on what you can receive.

Christian: Absolutely. And we’re just talking about Nehmer claims 1986 to yesterday. That’s going to be a big check in the amount that you pay per month, per disability rating. It’s going to go steadily up from 1985 until the present table.

Maura: Exactly, great. So there are some situations as I mentioned earlier where an award of retroactive benefits or the back pay that the veteran receives, might be offset by other benefits that are being received by the veteran at the same time. So, Mike, can you tell us about what offsets are generally and what recoupment means? So I think recoupment alludes to when VA needs to take funds back from a person that they paid.

Mike: Yes. So as you both have just said, there aren’t any real limits to the amount of back pay necessarily that a veteran can receive but there are what’s called an offset. That means that the veteran’s back pay maybe reduced by some other pay that they received, some other benefit that they received. So if that’s the case, VA will recoup or take back that previous benefit to offset the new benefit in disability compensation that they’re awarding. So for instance, one example of this is separation pay. Separation pay is essentially one time lump sum given to some veterans that are denied reenlistment or denied continuous service. So generally speaking, again, generally speaking or exceptions, but generally speaking, separation pay is something that must be offset if the veteran receives disability compensation. A second example is severance pay. So again severance pay is a one-time lump sum given to some veterans who are discharged from service due to a disability. Similarly to separation pay, severance pay must also be offset prior to the veteran receiving disability compensation. So those are two examples of where VA will offset or take back certain benefits that were already paid out. Once a veteran is now a service connected and going to be receiving a service-connected disability compensation going forward.

Maura: What about pension?

Mike: So pension is a needs-based program where as VA disability compensation is compensation paid out for service connected disabilities and essentially a veteran will receive a higher of the two benefit. So they won’t receive both benefits. They won’t receive pension and disability compensation. Once a veteran is service connected and receiving a high enough rating, combined rating, typically I would say the disability compensation is the higher award out of the two. So that means a veteran that may have initially started receiving pension will then begin receiving disability compensation. No longer receive pension because it’s the higher of the two disabilities.

Maura: That makes sense. So when pension is  concerned, you can’t receive both at once but you do receive the higher of the two which is great.

Mike: Correct. That’s correct.

Maura: Any other offset that you know of, that are worth mentioning? Again, we will be making any materials available about this offset because these are particularly tricky and could be topics of their own. But any other ones that you want to flag for us?

Mike: Yes absolutely. I think retirement pay is something that a lot of veterans deal with and see withheld or recouped from VA when they received disability compensation benefits. It’s as Maura said, it’s very confusing area. There are a lot of technical rules in this area but generally speaking, the rule, the general rule has always been that veterans really can’t receive both retired pay and disability compensation at the same time. But there are exceptions to that and once such exception is called, concurrent retired and disability pays. It’s called CRDP. Basically, what this means is that, certain eligible veterans are entitled to receive concurrent receipt, receipt of both their retirement pay and their VA disability compensation benefits. Some of the eligibility requirements are that veterans have to have been a 20-year military retiree. They must also have a combined disability rating for their VA disability compensation of 50% or higher. So, if veterans meet those two requirements essentially, then they may be able to receive concurrent receipt of both their retirement pay and also their VA disability benefits.

Maura: Great, and the rules about DIC that we touched on before, there’s no kind of different calculation that’s done for back pay for DIC, right?

Mike: It’s basically based on the rules that we said it before. If a veteran’s surviving spouse for instance, files a claim within the one year from the date of death then any back pay that is received will go back to the date of the veteran’s death. If the veteran’s  surviving spouse files a claim for DIC outside of that one year period, then the same general rule as we’ve been discussing applies, it’s the date of claims. So back pay would go back to the date of claim not necessarily the date of the veteran’s death.

Christian: One thing I want to know, we’ve been using spouse as sort of the proxy for dependency and indemnity, there’s also dependent children as well as I believe, dependent parent.

Maura: Yes.

Mike: Correct.

Christian: But two people can’t take it at the same time. So a surviving spouse can get DIC and the dependent child can get DIC but if one is not present then the other person would be able the receive as well and it’s, the money is different. There’s a whole different table, VA loves tables and numbers and rules. So I think it’s $1,300 a month, presently. But again, that would change if it were to be a claim that was filed a long time ago that is also adjusted.

Maura: Exactly.

Mike: A lot of these rules, particularly these offset rules, they’ve been created to kind of apply the general principle that they don’t want veterans, VA doesn’t want veterans essentially, double dipping. By that, they mean receiving two benefits for maybe the same condition or the same issue. So that’s when VA will offset or recoup certain benefits that have been previously paid to then pay the veterans disability compensation going forward.

Maura: Make sense.

Christian: One thing I want to know before we move on, VA should be doing this all correctly. Sometimes they are not doing this correctly so these are the rules and if you are getting paid for two of these things at the same time, that wasn’t supposed to happen and they, VA can come back and ask you to repay this, either by taking a percentage out of what you’re getting paid each month or asking for payment back at a certain. So it’s not like — not to suggest anyone would do this — but you’re not getting away with anything, please let VA know about it so they can correct it and you won’t have to have an over payment on your account — is it an account?

Mike: Yes.

Christian: — in the system for you because that could be a pretty large burden —

Maura: Definitely.

Christian: — and it’s not like they just forget about it.

Mike: That’s a good point and piggy backing off of that, when we’re talking about the concurrent receipt of retired pay and disability benefits, it’s important to know that this isn’t something that veterans need to apply for. As soon as they meet that criteria when a new grant is issued to the veteran, VA should be doing this on their own. Of course, it’s important to double check the work, for sure and make sure that it’s actually happening and if you have a representative, it’s something you should speak to your representative about but it’s not a separate application. It’s not a separate claim form that needs to be filed for a veteran to receive concurrent receipt of the retired pay and the disability compensation.

Maura: Great. The last thing we wanted to talk about today was if you receive a retroactive award and you think that it’s not the right amount, specifically, if you think that it’s too low than the effective date for the award might have been incorrectly decided. So what are your options if you receive an award or you receive a grant for the effective date, doesn’t look like what it should be, Christian? What can you do if you disagree with the effective date that’s assigned?

Christian: You should appeal and we’re talking about sort of the legacy system here, I think for most of this but you need to appeal it. If I’m remembering correctly, on the form that you’re required to use, at least presently, there’s an effective date choice. You can either appeal everything that happened or you can select rating or effective date. Just make sure that you’re being very clear what you want to appeal. You should appeal it, you should, If you think that they did it wrong, you should always appeal it because it you don’t appeal it in the correct amount of time, then you’re going to lose that right.

Maura: Right.

Mike: As you can tell from our discussion and as we’ve said, this is a very tricky area of the law and VA doesn’t always get it right. So, I think it’s very important for you to not just necessarily rely on and trust in whatever is granted. Make sure you’re taking a double check back and seeing, is that the date of the claim? Is that the date of my diagnosis? Is that the date that I refiled? Based on that, if you think, as Christian said, that your effective date is improperly granted and it can go back further, you should definitely appeal.

Maura: And if you appeal, what kind of evidence or argument would you want to submit? Either of you.

Mike: I think it’s important to the best of your ability, I think it’s important for you to lay out the kind of the procedural history of the claim. I know that can be difficult if you don’t have access to your entire file or maybe if you don’t have a representative but I think laying out clearly kind of the procedural history of your case and showing VA when a file, when a claim was filed up through the current decision, I think that is really beneficial in making your argument that you deserve in earlier effective date.

Christian: Because one of the pitfalls is VA will interpret statement or some sort of submission that wasn’t intended to be an increased-rating claim. As an increased-rating claim when you already had an increased-rating claim on appeal, maybe from years before. So definitely, second what Mike says about the effective date. I think I’ll comment on stage ratings because I think we’ve already talked about the more classic mistake. In those situations, if within an appeal period you think you should have gotten a higher rating, what’s really important is the point to the evidence in the file that you were entitled to– you had more severe symptoms. VA, either missed evidence or downplay the symptoms that you’re having. I’m trying to point out when and how you can show that your condition worsened within a 5 or sometimes unfortunately, 10-year appeal span, I think that would be a good idea.

Maura: Yes, I agree with both of those things and I think we see a lot of issues with this but one thing that we see frequently is a veteran will file an increased-rating claim, it will take several months or several years to get an examination to assess the severity and then by the time the decision comes through, it might grant the increased-rating but only as of the date of the exam.

Christian: Sure, yes.

Maura: Despite the veterans contentions that the symptoms were worsening prior to the exam. So I would take Christian and Mike’s advice. If that happens to you, set forth in an argument, “This is the date of my increased-rating claim and the symptoms that are documented in this exam we’re actually affecting me before that.”

Christian: Sure, yes.

Maura: The more specific you can be, the better because sometimes VA will say, “Well, we don’t really have a whole lot of evidence so we had to pick the day of the exam because that’s what we had to go off of.” But usually the veteran knows their symptoms better than anybody else.

Christian: Sure.

Christian: If not always, so they should speak out when the symptoms began to affect them and that can sometimes help to cut off this effective date [cross talk]

Christian: I love when clients write into the VA. When I’m handling — I work in the court when I’m handling an appeal just writing a letter saying, “These are the symptoms that I’m having. The VA examiner didn’t talk about all of them or here’s what’s happening to me now.” I’ve literally had clients that have been so precise in explaining it and I just take what they say and it’s all great to be able to help advocate for you on your behalf when we get to court so it’s an advice.

Mike: Yes, for sure and that’s something definitely to think about when you go to an exam. I think as you both have said, it’s important to not just state what your current symptoms are but if they’ve been occurring at the same severity level for the past several months, several years, I think that’s something to tell the examiner and make sure that they jot down because often times as we’ve said, when assigning an effective date in a stage rating situation unfortunately, VA will sign the date from the actual date of the exam which isn’t necessarily the proper thing to do.

Christian: Then I know we have a video on exams because I was in that. [laugh]

So, look out for that to sort of follow up on Mike’s great advice.

Mike: Yes.

Maura: Great. Any other questions? Do we have anything else? Anyone want to add anything?

Christian: I’m good.

Maura: We’re good to go?

Mike: I think that’s it, yes.

Maura: Perfect. So thanks everyone for joining us today. As we said, please look at the comments feed next to this video for any additional materials and definitely feel free to access our website at www.cck-law.com. Again, thanks everyone for joining us to talk about back pay today and we hope you have a great afternoon.

 

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