Legal Question in Military Law in Utah

Re: retroactive disability claim

Generally speaking, usually the only way to get retroactive benefits/monies from a BVA denial that was never appealed is to prove the prior VA decision was a �Clear and Unmistakable Error�. The claimant would have to show that the outcome would not have occurred had VA not made the error (on a certain set of facts as applied to the law at that time).

You may want to consider contacting an attorney to review your paperwork and see where you are in the claim�s process. I would note that prior to late last year, attorneys usually did not get involved in the administrative process (as opposed to the judicial appeals process) because, to be quite blunt, they could not get paid for their services. However, this rule was changed late last year when President Bush signed into law a bill permitting attorneys to be compensated for representation in this administrative appellate process.

The VA Secretary has less than 180 days to come up with the new rules that the attorneys have to follow (of course knowing government red tape and other possible political issues, this could take longer). Private attorneys may be willing to talk with denied claimants but they will more than likely not want to �represent� the claimant until these rules have been established. (There are Veterans� groups that have attorneys who may take a claimant�s case free of charge.)

Once these rules have been established, more attorneys will more likely be interested in handling these cases. Right now I believe that if a claimant�s case has been through the administrative appeals process, the claimant can obtain a lawyer for his/her federal court appeal. (FYI: The prior rule and the rule today does allow lawyers to be compensated if they represent a claimant in federal court.)

Good luck!