Jim,

Back in 1969, while playing Baseball, a much larger player than myself, hit me in my Lower Back. The AF Doctor did not take Xrays, did not touch my Back, nor give me any meds for the pain. To this day my Back and Knees have been screwed up.

In 1973, I put in a claim, and thought that since this was documented in my military medical records they would at least send me for an exam. But, they denied it saying that I had never injured my Back in the Military. When I appealed, same thing. Since, 1973, I have put in the same claim, and it was always the same reason for denial. I even sent them copies of the medical report.

On 2-16-2010, I put in another claim for my Back along with other things. Back around this past April 2012, I received a letter from the VA stating that they wanted me to take an exam to see what my current condition was! Of course, they do not tell you what that condition might be, well one day I received a phone call from the RO informing me that they (the VA) was re-opening my Back claim that had been denied, as they have now determined that I had in fact injured my Back in the Military. On 6-11-2010, I had the C&p exam done. I received my copies of the report yesterday. The Doctor clearly states that my Back and Knee injuries are related to the injury while in the military. At the C&P, I also gave the Doctor copies of a history of medical treatments after I left the service.

Since, the VA was the ones that re-opened this, and not myself, how will the effective date be determined? That is if they determine a rated percentage.

Reply:

Determining the effective date of a long ago filed claim is as complex as it gets. There's only one way that you can get that sort of retro...if the VA determines that it made a Clear and Unmistakable Error (CUE) on the original or any subsequent claims when denying them.

CUE is not simple. That VA made a decision that wasn't correct isn't automatically a CUE. If they made an error by denying you but were using laws that were correct at the time, based on the evidence available then, there is no CUE.

A CUE is based very deeply in complex legal theory, not common sense.

This claim will have a better chance of being determined as CUE if over the years since 1973 you have a solid record of constant treatments for that original injury. In other words, if you got out in 73 and in 74 you were seeing a doctor for the back pain, you have a better case. Then if you continued getting treatment in 75, 76 and right up to today, your case gets better.

If you don't have a track record like that, VA will likely determine that the original event caused you an "acute and transitory" injury. I see this a lot when vets who had a knee or back injury in the 70s now want to claim it in 2012 but they've had no treatment or almost no treatment since the original event.

If there isn't a record of consistent treatment but now you're disabled from a back problem, VA will probably tell you that you have a typical sort of arthritis that comes with age.

The law has changed too. Today, VA is required to thoroughly investigate (adjudicate) every claim. There was a time when VA could simply reject a claim that it didn't feel was well grounded.

I believe that best route for you is to go along with whatever VA is doing this time and don't upset the cart. If you are awarded a benefit, great...then once you have that in hand, start the claim for retro pay. Don't do it until you've established that you have a service connected rating. If you're denied, then take that denial to a couple of veterans lawyers and let them review it for you to see if they believe you have a case. If a lawyer won't take it, then you probably don't have a claim for the retro. If the lawyer will take it, you can plan on 3 to 5 years of waiting for it to get decided at BVA.

If you are awarded a rating, I doubt VA will even address retro pay although on occasion they do discover their CUE and take care of it right then. If that were to happen, they would base retro on what they believe would have been the appropriate rating at the time and then use the pay scale of those years to determined what you're due.

Don't count on it. Plan to speak with a lawyer once you have the award or denial letter.