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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26551
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am 100% disabled,P+T,service connected, PTSD. Navy fighter

Resolved Question:

I am 100% disabled,P+T,service connected, PTSD. Navy fighter pilot, lost 40 friends. couldn't greive because my job By 1992 stated to feel in control of it and lost my 15yr. old daughter to a drunk driver. Weeks after while visiting her grave site I was surprised by a Marine burial team entering the cemetary. They were bring in remains of friend from kids Lt. Robert Graustein, A-6 Intruder ,shot near Hanoi in 1973. He lies 25ft. from daughter. I spun in for good !! want backpay. continuos treatment. Prudental agreed.- VA 2011.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience. I currently serve as a VSO and file claims for vets.

Sorry sir, not sure I understand your question. If you are at 100% P&T you are receiving maximum compensation. What is it exactly you are looking for.
Customer: replied 1 year ago.

It is my understanding from some VA literature that if a veteran can show a diagnosis and continued treatment before the application for disability that the effective date can I be moved back to the original diagnosis and treatment date.


 


It has been agreed that my PTSD is service-connected being 1971 and that I in fact can show treatment from 1993 two 2011 when I applied for disability compensation. I am fact have been treated since 1971 but do not have the evidence to support it.


 


The death of my daughter unexpectedly ( which can be a PTSD causal factor according to DOD studies) certainly was an exacerbating factor to my service connected PTSD.


 


My effort is to show that retro compensation is appropriate pursuant to the VA rules in my case.????


 


I was a Navy JAG officer's through Naval Justice School, Newport. As a pro se defendant in a civil action in Maine. I have been disappointed to find how allusive "due process" is in the state lower courts.

Expert:  P. Simmons replied 1 year ago.
Sir, I think there may be some confusion. The law on effective dates of benefits is clear and can be found at 38 US Code 5110. You can see that law here

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

There are exceptions to this rule...but none that meet the criteria that you state.

If you look at the law, it states

(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.


THe key is the last clause

but shall not be earlier than the date of receipt of application therefor.

If you did not apply until 2011, that is the effective date.


I am very sorry to have to bear bad news...I do not know what literature you are referring to when you say

It is my understanding from some VA literature that if a veteran can show a diagnosis and continued treatment before the application for disability that the effective date can I be moved back to the original diagnosis and treatment date.


But any literature that says this is flat out wrong...Title 38 of the US Code is the law that applies. It was established by Congress...the VA is required to follow that law. So it is not possible to gain an effective date prior to the date you have filed.






P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26551
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

My reading of the law would argue that the key is not in the last clause of para. (a) but rather the key is in the first 7 words of that para.


 


Unless "specifically provided otherwise" as in (b) (2) -(3) (A)


 


The Regional Office in St. Petersburg has supplied with identical pages describing rights and procedures with the two decsions that they have made on my disability apps. It reads:


 


 


How VA Determines The Effective Date




  • When VA received your claim (if you file your first line with VA within one year of your separation from the military, entitlement will be from the day following the day you left the military); or

  • When the evidence shows a level of disability that supports a certain rating under the rating schedule.


 


Examples of evidence that you should tell us about or give to us that may affect how we to determine the effective date of any benefits we give you on your claim include the following:


 



  • Information about continuous treatment or when treatment began.


 


 


HOW VA WILL HELP YOU OBTAIN EVIDENCE OF YOUR CLAIM


 


VA will make every reasonable effort to obtain all the evidence and information we know about. This includes records held by federal agencies, such as your service department records, and privately held evidence and information you tell us about ( such as private Dr. records)



Expert:  P. Simmons replied 1 year ago.
Sir, we can agree to disagree. There is no law that would allow you to be compensated more than one year prior to your claim.


I will opt out, and allow another expert to weigh in, if they are so inclined.


I wish you the best of luck with your fight.

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