We often talk to veterans who have been misled about how much back pay (or retroactive benefits) they should receive once their disability has been service connected. It can be very frustrating to think that the VA will acknowledge that a disability began during military service but that it will not pay benefits all the way back to discharge from service.
The amount of retroactive benefits a veteran will receive for his disability depends on the “effective date” of service connection. As a general rule, the effective date of service connection is the date that a veteran first files a claim for compensation for that disability. Thus, if a veteran is injured during service in 1969 but does not file his first claim for benefits until 2002, his effective date cannot be earlier than 2002. One exception to the rule is where a veteran files a claim for compensation within one year of discharge. In that case, the effective date for service connection will go back to the day after discharge from service.
Once you have filed a claim for compensation, it is important to take steps to protect the date that you filed your claim as your effective date. A common mistake we find veterans making is to fail to file a timely appeal once the VA had denied their claims. Once VA issues a rating decision, a veteran has only one year to appeal that decision. If you fail to file a notice of disagreement with that decision, you may lose your rights to the date of that claim as your effective date.
I have been told by some of our clients that they were advised not to appeal a decision as they were told an appeal would delay their decision. They were told, instead, to file a new claim. This is a mistake! If you file a new claim instead of appealing your old claim, you will probably be assigned an effective date as of the date of filing your new claim. In order to protect the original filing date as your effective date for benefits, you must file an appeal.
Say, for example, you filed a claim for a back disability in 2002. The VA considered your claim for around two years and then denied your claim in 2004. If you appeal that decision and are able to get a medical opinion in 2006, while your appeal is pending, which proves that your back disability is related to service, you may win that case and be assigned an effective date of 2002. If, however, you fail to appeal the decision and then obtain that same medical opinion in 2006 and file a new claim, you will have lost the opportunity to receive four years of retroactive pay.
As with all things, there are, of course, exceptions to the rule. For instance, your original claim may have been denied because your service records have been lost and there was no way to prove that you were injured during service. If those service records are later found—which happens more often than you would think—the VA is obligated to reconsider your original claim and may be required to assign an effective date as of the date of your original claim.
Once you determine that you have a service-related disability, you should file your claim as soon as possible to allow yourself the earliest possible effective date. When you have filed that claim, protect your effective date. File your appeals on time. Get help figuring out the rules of effective dates and retroactive benefits. We can help make sure that you receive all of the benefits to which you are entitled. Don’t lose out on your back pay due to a careless error or a mistake that could easily have been corrected if you had only known the rules.
