Earlier effective dates
I have received a lot of questions about effective dates recently. You can read our prior post about this here. But with the addition of the new Agent Orange/Nehmer cases and the change in law with PTSD stressors I thought that I would offer an update on this area.
When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to service. The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award. This is the date from which the VA determines the veteran should receive compensation.
In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence. This is true when the veteran is contesting a determination on service connection or the rating (in fact, in a rating case, the veteran does not even have to present new evidence, but just claim that the disability is worse). But this concept of reopening a claim is not true when it comes to effective dates.
The only time to contest the effective date of an award is within the appeal period of the decision. So if the Board of Veterans Appeals’ issues a decision and gives an effective date, then the veteran has only 120 days to appeal that decision. If the regional office (RO) issues a decision on the effective date, the appeal period can range from 60 days – if it was a Statement of the Case – or longer – if it was a rating decision. No matter where the decision is issued, it is critical that the veteran quickly determines if the effective date is correct; once the appeal period ends, it becomes very difficult to contest the effective date. The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim). This is an extremely difficult burden and veterans rarely win these cases.
The law on effective date is that it is typically the date that the veteran filed the current claim. There are many exceptions that allow a veteran to go back further—sometimes decades. But determining whether the effective date is correct cannot be done without a thorough review of the veteran’s Claims file (aka C-file). The C-file has information on any and all claims that a veteran has filed since discharge. It gives the veteran’s advocate not only a chronology of when claims were filed, but also what evidence was submitted when; stated differently:when the VA knew what.
Two areas that I often find effective date mistakes in are cases regarding Agent Orange and PTSD . Agent Orange cases have their own special rules for effective dates due to the Nehmer litigation. The Nehmer rules call for much more favorable decisions on effective dates,often going back years to when the veteran first applied and not just when the veteran reopened. The recent new wave of Agent Orange cases related to Ischemic Heart Disease, Parkinson’s and chronic B cell leukemia has led to a flood of decisions that deal with effective date. In these cases, it is vitally important veterans make sure that the VA determined the correct effective date when the award is granted.
In PTSD cases, I find that by the time the veteran comes to me for help, he had applied and been denied multiple times before. This scenario is particularly true for Vietnam veterans. So many of the Vietnam veterans suffered from PTSD for decades before the VA would even admit the existence of the disease. In these cases when the VA finally grants service connection, there are instances in which the VA has to grant benefits all the way back to the original application date if the grant was based on service records newly associated with the veteran’s C file. So if the veteran had applied for compensation for PTSD and been denied multiple times since 1980, and the VA finally grants the case because of a discovery of a service record ( such as an After Action Report showing the veteran was in combat, or documentation showing that the veteran was given a Bronze Star), then the veteran has an opportunity to collect compensation all the way back to the original claim.
In short, it is important to understand that the veteran has one real chance to make the VA get the effective date right, and that is when the award is granted. If the effective date is not right, a veteran must raise this issue during the appeal period, otherwise the VA’s determination prevails.