What is an ‘earlier’ effective date?
An effective date is used by the VA as a starting point for a veterans payment of disability benefits for a claim. It is often the date that the veteran filed for disability compensation or increased compensation.
Sometimes, this is not the earliest effective date a veteran can receive, and there are potentially several ways to argue for a different date.
What is considered New & Material Evidence?
To be considered “new” the evidence must currently exist and be submitted to VA for the first time.
To be considered “material,” the evidence must be relevant to the reason(s) your claim was denied.
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:
If 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.” When this type of record is found, it can potentially mean an effective date years or decades earlier than the recent decision.
Clear And Unmistakable Error (CUE) Claims
Another special rule applies to claims alleging clear and unmistakable error (CUE).
If the VA grants a claim challenging a previous final RO or BVA decision based on CUE, the effective date is the date that the VA received the previously denied claim.
This means there is potential for many years of retroactive benefits for these types of claims, but it is important to note that these claims are very difficult to win.
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 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.
Presumptive Service Connection Compensation
There are certain conditions that the VA presumes are connected to military service.
This means that you don’t need to prove direct service connection.
For example, this is the case with Vietnam veterans and illnesses connected to agent orange exposure.
If the VA grants presumptive service connection for your condition, and they receive your claim within one year of discharge, the effective date is the same as the date that the illness or injury first occurred.
However, if the VA receives your claim more than a year after discharge, the effective date remains either when they received your claim or when your illness or injury first appeared—whichever occurred later.
Recent Discharge From Military Service
If a veteran files a claim for disability compensation within one year from the date of discharge, another special effective date rule applies.
In this situation, the effective date for the award would be the day after discharge, as long as the veteran had the disability on the day after discharge.
Note that this special rule only applies if the claim is initially successful.
If a claim is denied and becomes final, and the veteran reopens the initial claim at a later date, the effective date does not go back to the date of discharge.
Dependency And Indemnity Compensation (DIC)
There is a similar rule for death and indemnity compensation (DIC) claims that are received within one year of a veteran’s death.
If such a claim by a surviving spouse or family member is granted, the effective date is the first day of the month in which the veteran died.
How To Get an Increased Rating on Your Disability
Another situation with complicated special effective date rules occurs when a veteran files a claim for increase in disability rating within one year of the date that the disability got worse.
In order for this special rule to apply, the disability must already be service connected.
If a veteran has a service-connected disability that gets worse, and files a claim for increase within one year of the date that the evidence shows the disability got worse, the effective date should be the date that the evidence shows the disability got worse.
In order to prove a veteran’s disability got worse within one year of the claim for an increased rating, the best evidence is going to be medical evidence, such as a statement from a doctor who can show when exactly the condition worsened and medical records that show the condition has worsened.
A statement from the veteran can be helpful in this situation as well, but it is always helpful to have that statement be backed up by medical evidence.
It is important to note that the VA rarely initially grants these earlier effective dates for increased ratings, so if you file for an increased rating and are not given the correct effective date, you should appeal that decision.
Agent Orange 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.
Is Your VA Disability Effective Date Wrong?
As you can see, the rules for effective dates are complicated, and often vary greatly depending on the particular aspects of a veteran’s claim.
Because of this complexity, the VA gets effective dates wrong more often than they’d like to admit, so it is always important to check the effective date of an award for benefits in order to make sure you are getting all the compensation to which you are entitled.
If you believe that the effective date for your disability benefits does not match your circumstances, contact the team at Hill & Ponton for help with your VA claim.
Our legal experts specialize in veteran disability benefits, and can help you with appealing your claim and fight for the benefits you deserve.
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