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Long story short... I was injured in the military in 2005 and reported it because I was in pain. I separated shortly after. I filed for disability because my Dr told me I should (I was young and knew nothing about that stuff).
I did receive it at the time but it was only 10 or 20% and it wasn't for one of the primary areas of pain which is my hip. I've been trying to get a rating for my hip and other things for yrs. But I wasn't appealing because I didn't know about that. I was just putting in new claims and it wasn't continually because I was also suffering with chronic depression due to the pain and lack of help and inability to work like I use too etc... which I also seen the psychologist at the VA and he's the one who said it was chronic depression.
My rating has increased in the last few yrs to 70% because I got help with a VA lawyer and VA gave me a rating for things I put in for that was an issue but not for primary things like my hip... I have repeated history and evidence of hip pain, physical therapy, pain therapy and they have not given me any rating for it and also for my depression, I have history for it and nothing but I just got a rating for my migraines that I haven't even talked about as much and my flat foot.
I can't believe it. I want to know if it's possible to fight to have my claim date to start from the time of injury? It's absolutely bizarre to me that they gave me ratings for things with less "evidence".
My rating has increased in the last couple of years to 70% with the VA lawyer.
Im waiting to hear back from my lawyer about this but thought I'll just see here. Oh and my lawyer did mention about trying for IU and I'm ok with that but I want my actual rating to be 100% because I want my hip to be rated as well as other serious areas. It's like they didn't connect nothing really from the actual incident.
Also, will IU be backpayed from the time my lawyer put it in or from when it's approved?
I did receive it at the time but it was only 10 or 20% and it wasn't for one of the primary areas of pain which is my hip. I've been trying to get a rating for my hip and other things for yrs. But I wasn't appealing because I didn't know about that. I was just putting in new claims and it wasn't continually because I was also suffering with chronic depression due to the pain and lack of help and inability to work like I use too etc... which I also seen the psychologist at the VA and he's the one who said it was chronic depression.
My rating has increased in the last few yrs to 70% because I got help with a VA lawyer and VA gave me a rating for things I put in for that was an issue but not for primary things like my hip... I have repeated history and evidence of hip pain, physical therapy, pain therapy and they have not given me any rating for it and also for my depression, I have history for it and nothing but I just got a rating for my migraines that I haven't even talked about as much and my flat foot.
I can't believe it. I want to know if it's possible to fight to have my claim date to start from the time of injury? It's absolutely bizarre to me that they gave me ratings for things with less "evidence".
My rating has increased in the last couple of years to 70% with the VA lawyer.
Im waiting to hear back from my lawyer about this but thought I'll just see here. Oh and my lawyer did mention about trying for IU and I'm ok with that but I want my actual rating to be 100% because I want my hip to be rated as well as other serious areas. It's like they didn't connect nothing really from the actual incident.
Also, will IU be backpayed from the time my lawyer put it in or from when it's approved?
Posted in these groups: 
Disability
Disability
Posted 6 mo ago
Responses: 5
Generally, the effective date of a VA claim is the date of separation from the military (if filed within one year of discharge), the date that a notification of intent to file was given (as long as it's within one year of filing the claim) or if not notification was given, when the claim was filed*. These dates are driven by federal law (38 U.S. Code § 5110*) and implemented in federal regulations (38 CFR 3.400*)
People have had claims that had effective dates going back years, but that's because they generally fell into one of the following categories:
● Claims that were years old when they were finally approved on appeal (average time to get a decision from the VA’s Board of Veterans’ Appeals is about six years)
● A previous denied claim that "new and material evidence"* that wasn't part of the records that the adjudicators reviewed. In order for evidence to be considered “new” by the VA, it must have existed at the time of the denial and not have been previously submitted. Additionally, for evidence to be considered “material,” it must pertain to the reason(s) for claim denial.
● Something that is now a presumptive service-connection but was denied in a claim that was submitted within one year of leaving the military. That "within one year" is key because if the claim is submitted more than a year after discharge then the normal rules apply (there is an exception only for Agent Orange conditions called the "Nehmer rule")
● Where the VA screwed it up. If there is a "Clear and Unmistakable Error" (called a 'CUE') by the VA that led to a claim denial that otherwise would have been granted, then regardless of how much time has passed, the effective date could be backdated. Examples would be not giving a service-connection because a period of service wasn't considered, applying the wrong law for denying claims, failing to apply a presumption when they should have, etc.
Again, generally, these (or variations on them) are the situations where you could have an effective date much earlier than when the claim was approved, however as you can see, almost all are tied to a previously denied claim.
It's possible that your lawyer might find some nexus to your original claim (they gave you a wrong rating even though the information they had stipulated a higher rating .. there was evidence the government had that if they had would have given you a higher rating .. etc.), but I assume they would have discovered it by now if so (unless it was recently discovered).
I assume you've heard the saying that "Ignorance of the law is no excuse." That can be rephrased and applied to the VA compensation process as, "You're going to be held to the rules and regulations that govern the VA regardless if you know about them or not."
One of the reasons that I and the vast majority of others give the advice to "contact a Veterans Service Organization and don't do it yourself" is exactly for this reason. They would have been valuable in helping to put together your claim in the first place and advise you on the next steps.
For example, one of the old sayings when it comes to a VA compensation claim is, "pain isn't compensable". While that's not completely accurate, it is usually is followed by why you just can't claim something hurts - you have to show that it is a limiting condition such as decreased range of motion in a joint because of pain, has has an impact on your standard of living, causes other issues, etc.
I've referenced the VA's Schedule for Rating Disabilities below - this is the base rules they follow when evaluating compensation claims. If you look through it you'll see a lot of detailed descriptions regarding the criteria necessary for a rating for a condition. If you look at your claim (you can see the paperwork when you log into the VA and look at "Your VA claim letters") you'll see what they classified it as and why you got that rating and not a higher one.
-------------------------------------
* 38 U.S. Code § 5110 - https://www.law.cornell.edu/uscode/text/38/5110
* 38 CFR 3.400 - https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR429f47d98271c40/section-3.400
* https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/ [login to see] 01018/content/ [login to see] 80492/M21-1-Part-V-Subpart-ii-Chapter-4-Section-A-Effective-Dates
* "New evidence" rules for backdating effective dates - https://www.law.cornell.edu/cfr/text/38/3.156
* VA's Schedule for Rating Disabilities - https://www.ecfr.gov/current/title-38/chapter-I/part-4/
People have had claims that had effective dates going back years, but that's because they generally fell into one of the following categories:
● Claims that were years old when they were finally approved on appeal (average time to get a decision from the VA’s Board of Veterans’ Appeals is about six years)
● A previous denied claim that "new and material evidence"* that wasn't part of the records that the adjudicators reviewed. In order for evidence to be considered “new” by the VA, it must have existed at the time of the denial and not have been previously submitted. Additionally, for evidence to be considered “material,” it must pertain to the reason(s) for claim denial.
● Something that is now a presumptive service-connection but was denied in a claim that was submitted within one year of leaving the military. That "within one year" is key because if the claim is submitted more than a year after discharge then the normal rules apply (there is an exception only for Agent Orange conditions called the "Nehmer rule")
● Where the VA screwed it up. If there is a "Clear and Unmistakable Error" (called a 'CUE') by the VA that led to a claim denial that otherwise would have been granted, then regardless of how much time has passed, the effective date could be backdated. Examples would be not giving a service-connection because a period of service wasn't considered, applying the wrong law for denying claims, failing to apply a presumption when they should have, etc.
Again, generally, these (or variations on them) are the situations where you could have an effective date much earlier than when the claim was approved, however as you can see, almost all are tied to a previously denied claim.
It's possible that your lawyer might find some nexus to your original claim (they gave you a wrong rating even though the information they had stipulated a higher rating .. there was evidence the government had that if they had would have given you a higher rating .. etc.), but I assume they would have discovered it by now if so (unless it was recently discovered).
I assume you've heard the saying that "Ignorance of the law is no excuse." That can be rephrased and applied to the VA compensation process as, "You're going to be held to the rules and regulations that govern the VA regardless if you know about them or not."
One of the reasons that I and the vast majority of others give the advice to "contact a Veterans Service Organization and don't do it yourself" is exactly for this reason. They would have been valuable in helping to put together your claim in the first place and advise you on the next steps.
For example, one of the old sayings when it comes to a VA compensation claim is, "pain isn't compensable". While that's not completely accurate, it is usually is followed by why you just can't claim something hurts - you have to show that it is a limiting condition such as decreased range of motion in a joint because of pain, has has an impact on your standard of living, causes other issues, etc.
I've referenced the VA's Schedule for Rating Disabilities below - this is the base rules they follow when evaluating compensation claims. If you look through it you'll see a lot of detailed descriptions regarding the criteria necessary for a rating for a condition. If you look at your claim (you can see the paperwork when you log into the VA and look at "Your VA claim letters") you'll see what they classified it as and why you got that rating and not a higher one.
-------------------------------------
* 38 U.S. Code § 5110 - https://www.law.cornell.edu/uscode/text/38/5110
* 38 CFR 3.400 - https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR429f47d98271c40/section-3.400
* https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/ [login to see] 01018/content/ [login to see] 80492/M21-1-Part-V-Subpart-ii-Chapter-4-Section-A-Effective-Dates
* "New evidence" rules for backdating effective dates - https://www.law.cornell.edu/cfr/text/38/3.156
* VA's Schedule for Rating Disabilities - https://www.ecfr.gov/current/title-38/chapter-I/part-4/
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COL Randall C.
A1C India Chism - Regarding the hip, 'could' it be service related because you have it on record? Yes, but ... You'll have to show that it was more than just a transitory injury.
Something that you can use as a basis of "this event happened and was bad enough to cause longer term issues" - medical or official reports, sworn third-party statements, etc.
If your records are basically "Doc, I hurt my hip and I'm in pain" and you only sought treatment for it once or twice, you'll have an uphill battle on it.
Going back to the original rating - are you absolutely sure that 20% wasn't related to your hip? Did any of the subsequent denials state that you were already rated for a related item that covered the hip? For example, hypothetically you were denied a rating for "hip pain" because you already received a rating for a "somatic symptom disorder" (chronic pain).
If a condition was already included in the rating of another condition, then 'pyramiding' would apply (getting multiple ratings for the same disability).
Something that you can use as a basis of "this event happened and was bad enough to cause longer term issues" - medical or official reports, sworn third-party statements, etc.
If your records are basically "Doc, I hurt my hip and I'm in pain" and you only sought treatment for it once or twice, you'll have an uphill battle on it.
Going back to the original rating - are you absolutely sure that 20% wasn't related to your hip? Did any of the subsequent denials state that you were already rated for a related item that covered the hip? For example, hypothetically you were denied a rating for "hip pain" because you already received a rating for a "somatic symptom disorder" (chronic pain).
If a condition was already included in the rating of another condition, then 'pyramiding' would apply (getting multiple ratings for the same disability).
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SPC Jesse Lallier
WOW six years is the average to get a decision? Boy I must be super lucky. I filed a claim 3 years ago and I got a decision within 30 days after filing. The Angels must have been looking out for me. 100%P&T
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COL Randall C.
SPC Jesse Lallier - Opps. I should have added "Appeals Board" as part of that comment. If you file and it's denied, then asked to be reconsidered and it's denied, then have a higher level appeal that is denied, then appeal to the VBA ... that would take six years on average.
Within the current legal framework, the average processing time for all appeals is approximately 3 years. Veterans who decide to appeal to VA’s Board of Veterans’ Appeals wait an average of 6 years from the initiation of their appeal in the Veterans Benefits Administration for the Board’s decision.
Within the current legal framework, the average processing time for all appeals is approximately 3 years. Veterans who decide to appeal to VA’s Board of Veterans’ Appeals wait an average of 6 years from the initiation of their appeal in the Veterans Benefits Administration for the Board’s decision.
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https://www.va.gov/disability/effective-date/ based on how the VA determines effective dates, probably not. But it doesn't hurt to try. Your lawyer is your best means of an answer.
Disability compensation effective dates | Veterans Affairs
When we decide we’ll pay a disability benefit based on a claim, we assign an effective date to that claim. The effective date is the day you can start getting your disability benefits. This varies with the type of benefit you’re applying for and the nature of your claim.
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