The VA is often fickle about their effective dates for claims and that generally means that they are going to award a veteran the latest effective date that they can for a given claim. Generally, this will be the date that the veteran submitted their most recent claim. However, it is important to realize that this is not the end of a veteran’s claim or ability to argue for an earlier effective date for his or her particular disability. There are a handful of other ways in which to attempt to get an earlier effective date for your claim. Today, I would like to discuss a couple of them.
38 CFR 3.156 is the federal regulation relating to new and material evidence. Section (c) is far more specific than the overarching regulation and deals specifically with service department records. This exception deals with newly discovered service department records or records that existed at the time the VA made its decision and simply did not associate with the claim. If the claim was denied previously, but then granted on records which have recently been discovered, the regulation requires that the VA consider an effective date back to the time of the previously denied claim. In particular it states:
[I]f the VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section…
It then lists service records related to an event, injury, or disease in service, records forwarded by the Department of Defense or service department of the VA, or, interestingly, declassified records that could not previously be obtained because they were classified when the VA previously decided the claim.
The regulation goes on to state that when this type of “new” evidence leads to a grant of service connection, and support the assignment of a rating, “a retroactive evaluation WILL be assigned.” (emphasis added) When this type of record is found, it can potentially mean an effective date years or decades earlier than the recent decision.
- Nehmer Review
Nehmer rules are not quite the same as the other instances discussed in this post because Nehmer applies specifically to Agent Orange cases. Nehmer came about due to a lawsuit between Beverly Nehmer and the VA in the 1980s and was codified in 38 CFR 3.816 Nehmer states that when the VA adds a new disease to the presumptive list for Agent Orange, the VA adjudicators are required to automatically review cases of Vietnam veterans who were previously denied service connection or dependent indemnity compensation (DIC) benefits for the newly added disease. When the VA is re-adjudicating the claims based on the newly codified presumption, it is also required to determine the effective date of the benefits as the date of receipt of the claim.
It is important to note though that Nehmer class members only include veterans who served in the Republic of Vietnam and has a covered herbicide disease or a surviving dependent of the veteran who served in Vietnam during the Vietnam era and died as a result of the newly covered disease.
The list of presumptive diseases for Agent Orange can be found here.
The third way to argue for an earlier effective date is CUE. “CUE” is an acronym standing for “Clear and Unmistakable Error.” CUE is less likely to be granted than other means of getting an earlier effective date, such as 3.156(c) mentioned above, because it is carries a heavy burden of proof. CUE claims are granted when the VA makes a mistake, and “but for” that mistake, the claim would have been granted. An example of this is when the VA mistakenly applied the wrong law to the claim. This can happen because the VA applied a law that was not in effect at the time of the claim, or failed to apply the law that was.
Cue claims, or more specifically Motions for Revision, have very specific requirements. When making an argument for CUE, it is important to lay out the entire history of the claim, in particular the facts as they were at the time the decision was made. (The VA will not consider evidence submitted after the decision in question when CUE is at issue.) The pleading must then specify what error the VA made in the decision, and finally why there would have been a different outcome if the VA had correct applied the law or considered all the facts before them. Essentially, to effectively argue CUE, you must who that the VA would have been required to grant your claim under the law and facts at the time of the decision.
Examples of CUE are often seen in cases of reduction of benefits, failure to apply the presumption of soundness, or failure to apply the Agent Orange presumptions to brown water veterans.
- Claims for Increased Rating
The final time to argue for an earlier effective date, that I will discuss today, is when you file for a claim for increased rating for a disability. A claim for increase will generally be granted back to the date that a veteran applied for the increased rating. However, the VA regulations allow for the VA to grant benefits up to a year before the filing if the increased condition pre-existed the veteran’s claim for increase.
An example of this would be a claim for increased rating in hearing loss based on an examination preformed months before the veteran filed his claim showing a significant increase in his service connected hearing loss. The general rule is that the veteran must be able to show the increase within the past year and that the increase was more than marginal. This is discussed in more detail here.
Thank you for reading and, more importantly, thank you for your service.