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How does VA Decide the Effective Date of A Veteran’s Service Connected Disability CompensationClaim?

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How far back will VA back pay go?

Question:  How does the VA Decide How Far Back My Retroactive VA Disability Payments Will Go?

So you are a veteran and you just received a Rating Decision granting you service connection for a disability from the US Department of Veterans Affairs (the VA). Chances are you have been waiting for this for years. After your initial reaction of relief, you see your rating states: 30% effective July 1, 2014. You then start to wonder: “Where did the VA get this effective date? Why did the VA pick July 1, 2014?” The law says that date – called the “effective date” – cannot be any earlier than the date you applied for the benefits, but VA often chooses a later date.  The effective date of your VA rating is the date that determines the amount of past due VA compensation you are entitled to receive for that claim.

To figure out how VA picked your effective date, we need to answer 2 questions:

  1. On what day did the VA receive your application for benefits for that claim?
  2. When did your condition manifest or first show itself?

Because this can become complicated, this article will provide details on whether or not your assigned effective date has the potential for appeal.

Date Application is Received

Benefits cannot start before the date you applied

The law VA allows VA to calculate the effective date of your VA compensation claim back to the  date that the VA received your claim, but no earlier than that. It is not the date that you wrote out your claim, or even the date you put it in the mail. The oldest possible calculated date is the day the VA received the claim. You might be saying, well that should be easy to figure out. Unfortunately, with the VA nothing is that simple.

What if there were problems with your application?

What makes it complicated is what actually constitutes a submitted claim. If you filled out the proper form accurately, then it can be easy to figure out. But what if the initial communication with the VA is a letter? What if you didn’t sign your form? What if you didn’t list one of your claims, so have to send in a new one? This is where things become complicated.

Informal claims do not count after March 2015

The VA solved these issues in 2014 by making informal claims invalid for effective date purposes if filed after March 24, 2015. If you filed an informal or formal application before March 24, 2015, the VA looks at two questions: 1) did the VA receive an informal or formal application before March 24, 2015 which was ultimately paid? If yes, then 2) was the claim pending on March 24, 2015? If the answer to both questions is yes, then the effective date will be when your original informal or formal application was received. If the answer to one of the questions is no, then only a formal application would be counted for your effective date and it would be after March 24, 2015.

What About Claims Reopened With New and Material Evidence?

What happens if my original claim was “finally denied” but I got it reopened with new evidence? The effective date would then be the day the VA received your application to reopen the claim. Reopened claims typically come about when a veteran lets more than one year pass after VA issues a Rating Decision denying a claim, and then they file a new application or new evidence.

If you find yourself in this situation there still may be a way for you to get an effective date going back to your original claim. You would have to show that the VA made a “clear and unmistakable error” (CUE) in denying your claim the first time. This is a legal standard you would have to address with the VA. It is important to note that you have to file a separate claim of clear and unmistakable error in denying your claim for it to be reviewed by the VA. Appealing the effective date by arguing clear and unmistakable error will not be enough.  Also, a CUE claim is very difficult to win, because you basically have to show that VA made an error that was obvious which they should have caught at the time based on the information they knew at the time.

Another Date – Like the Date That Entitlement Arose – Is Possible

The second way your effective date can be chosen is by the date that the entitlement arose. The date that the entitlement arose means: the date the disability first manifested, or the date the law authorized entitlement to benefits. The best way to demonstrate these two is by examples.

Let’s say that you received a back injury during military service. You continue to suffer from this injury and you seek compensation for it. The date that the disability first manifested would be the date you left the military.

A second example might be a veteran who served in Vietnam where they were exposed to Agent Orange. The VA passed Various regulations after the Vietnam War that granted presumptive service connection for some conditions.  One of those was non-Hodgkin’s lymphoma, if the condition developed to a degree of 10% or more any time after service.  Let’s say in 2008 the veteran was diagnosed with this disease from  exposure to Agent Orange. The moment the disease made the veteran 10% disabled is the date the “entitlement arose.”

Even if you submit evidence 2 years after applying for benefits, but it shows that you were disabled from a condition at the time you originally applied, the date the “entitlement arose” would be the date of the original application. It is not the day evidence was submitted.

VA Is Required to Pick the Later Date – Your Application or the Date Entitlement Arose

In the above example with the back injury just because the date the entitlement arose was when you left the military, doesn’t necessarily mean that will be your effective date. When weighing both the date of application and the date the entitlement arose, the VA is required to pick the one that happened later. This means if your back condition arose after leaving service in 1976, but you applied for benefits in 2006, the effective date would be 2006.

Takeaway

The best piece of advice we can give when speaking about effective dates is this:  DO NOT WAIT TO APPLY.  Assume the VA will pick your application date, and apply early.  If you are suffering from a condition that you received because of your military service, the sooner you apply, the more time you will be compensated.  If the evidence does not show you met all of the requirements to prove entitlement to service connected disability at that time, you can still get a later effective date once you prove you are disabled under the VA’s rules.

 

If you believe your entitlement date is wrong, call one of our experienced VA Disability attorneys to see if we can help you with an appeal at (866) 282-5260.  The call is free, and if you are scheduled with one of our attorneys, the consultation is free too.

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