Question:
I am currently 110% P/T. 10% - Closed head injury effective 1995 2010 was granted the following. 100% - TBI as a secondary to a closed head injury effective 2004 0% - Migraines effective 2004 In 2010 I was 37 when granted 100% P/T.
My question to you is. I am contemplating filing a increase of rating for migraines at 50% based on the effective date 2004. My migraines were severely underrated, and the retroactive would be substantial. My wife says, leave well enough alone and don't mess with those people. I understand her concern, but I feel as though right is right and wrong is wrong. Twenty years from my effective date, congressional law protects my ratings from being taken or reduced for any reason besides fraud or a felony. I am a devoted reader of your website and consider myself reasonably veteran law educated. I respect your wisdom and request your honest opinion. Should I?
Jim's Reply:
The effective date of a claim is the date that you filed it with very few exceptions. You were rated at 0% for migraines in 2004 and you had one year after that rating was awarded to appeal it and keep the original effective date. When we disagree with a rating or when we are denied a rating we have one year to appeal, after that the rating is permanent and if we want changes, we start over. If you wanted to change that rating today, you'd file a claim right now and your effective date would be today.
I'll assume you didn't take any action to appeal that rating within the one year period so the thought of a 2004 effective date is unrealistic. There is no "congressional law" that protects your benefits, there's only Title 38 and the twenty year rule has absolutely nothing to do with any of this and neither does the reference to a felony. People commit felonies all the time and keep their full benefits.
The bottom line is that I don't think you'd put your current benefits in jeopardy by trying to do what you're contemplating, but I think you'd be wasting your time and you'd be tying up people at VA who should be helping others who need the help and who aren't looking for that "substantial" retro pay.