Can you get service connected years later?

A1C India Chism — Wed, 01 Nov 2023 20:47:35 -0400

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?

Response by SGT Private RallyPoint Member made Nov 1 at 2023 9:22 PM

SGT Private RallyPoint Member — Wed, 01 Nov 2023 21:22:20 -0400

A1C India Chism TDIU... what your attorney is suggesting is your best bet.

Response by MAJ Private RallyPoint Member made Nov 2 at 2023 10:41 AM

MAJ Private RallyPoint Member — Thu, 02 Nov 2023 10:41:35 -0400

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.

Response by COL Randall C. made Nov 2 at 2023 1:21 PM

COL Randall C. — Thu, 02 Nov 2023 13:21:26 -0400

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.
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* 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/

38 U.S. Code § 5110 - Effective dates of awards

Response by 1SG Robert J. Galloway made Nov 2 at 2023 8:28 PM

1SG Robert J. Galloway — Thu, 02 Nov 2023 20:28:19 -0400

Yes. You can file for disability for your hip, if you have the documentation that it is service connected, any time. If you filed for it before, appeal the findings, and indicate in the appeal that this condition you filed for is not listed, nor is there a mention of it in your disability rating. But be aware, that a lot of things could be listed that encompasses the condition you mentioned, (your hip). It could be incorporated in a muscle group. It will take the appeal board to sort it out, but they should give you an answer to your questions, on the appeal. You can file an appeal, but it will have a time ;limit for filing. I would suggest you go to your county VA Representative, and take all your filings with you.He can help you.

Response by CMSgt Jack Szalasny made Nov 4 at 2023 1:22 PM

CMSgt Jack Szalasny — Sat, 04 Nov 2023 13:22:10 -0400

I'm brand new to this group and don't know if we can refer websites here, but there's a FREE organization (they ask for a $495 donation but not mandatory) that provides a NEXUS letter or DBQ for mental health and hearing issues. I'm rated 10% tinnitus and they are currently appraising my insomnia. I didn't pay the $495 but do intend to donate double if I get the disability rating.

Also, I didn't submit my first disability claim until 18 years after retirement based on bad advice I was given by the VA. My first claims filed with a VSO from DVA were either denied service connection or rated 0%. VSO told me I was SOL and that was the end of that. Last year I found an attorney who took my case. Have now a total of 20% rating and several outstanding claims in High Level Review. I have no problem with the attorney getting 20% of any backpay due me, they can't do this for free.