Category: Veterans Disability Law
VA Effective Date for Disability Compensation & Claim Appeal
Determining Your VA Effective Date for Disability Compensation and Claim Appeals
If you suffer from a service-connected disability due to your time in the military, you may be entitled to compensation from the U.S. Department of Veterans Affairs (VA). The amount of money you will receive monthly depends on the location and severity of your condition. In addition to those benefits and depending on the VA effective date for your disability claim, you may also be eligible for retroactive benefits.
What Is a VA Effective Date?
There must be a time from which you are set to be awarded VA compensation. The effective date is the term representing that date. Essentially, a VA effective date is the specific date from which your VA benefits are to be paid.
How Is a Veteran’s Effective Date Decided?
VA is solely responsible for assigning you your effective date, but that does not always mean they assign you the appropriate one. For claims with direct service connection—straightforward claims for a disability that was caused or made worse by active military service—the effective date is decided in one of two ways.
If you submit your disability claim within one year of separation from active service, VA will award you benefits from an effective date exactly one day after your separation from the military. For example, if you were discharged on April 30, 2019, and you filed a claim for back pain on January 3, 2020, VA will assign you an effective date of May 1, 2019.
If you submit your claim more than one year after your separation or discharge from active service, VA will award you benefits from the date they receive your claim. For example, if you were discharged on April 30, 2019, and you filed a claim for back pain on May 15, 2020, VA will assign you an effective date of May 15, 2020.
If you file a claim within one year and VA assigns you an effective date on the date they received your claim, you may be eligible to appeal that decision and move up your effective date.
What Factors Might Change My Effective Date?
Similar to any other VA regulation, each case is handled differently. There are a variety of additional rules involved in determining your VA effective date that must be taken into consideration. Some of them are fairly straightforward, while others require more research and additional evidence. A VA disability lawyer can help you decide if your effective date is correct or not—and how to go about appealing an incorrect decision.
When challenging VA effective dates, it’s important to always be aware of deadlines and time constraints. The longer you wait to fill VA forms out, the more likely you are to lose potential benefits from VA back pay.
Presumptive Service Connection
One of the most important parts of any VA claim is proving the service connection between your VA disability and your time in the military. For some conditions, VA already assumes them to be service-connected due to a large number of veterans coming forward with the same issue around the same time. This is how the VA presumptive list was developed.
The presumptive list links a variety of conditions with specific conflicts that are automatically service-connected when you receive a diagnosis. One example of this is seen in veterans who developed illnesses as a direct result of herbicide exposure in the Vietnam War.
If you file a claim for a presumptive condition to VA within one year of your separation from military service, the effective date will be the date you first received your injury or illness. If you file a claim more than one year after you finish serving in the military, your effective date will either be the date VA received your claim or when you first got your injury or illness—whichever is later. Usually, this means your effective date will be the date VA receives your claim.
Changes in Legislation
Your VA effective date can also depend on when VA receives your appeal request. If your claim is received within one year of new legislation that alters the rules, also called a liberalizing law change, your effective date may be the date the law changed. If your claim is received more than one year after that change in legislation, it will not affect the claim and your effective date will be the date VA received your claim.
Increases in VA Disability Rating
Complicated effective date rules also apply if you file a claim to increase your disability rating. If you file for an increased rating within one year of the date on which your disability worsened, your effective date should be the day on which your symptoms became eligible for an increase. For this rule to apply, the condition must already be service-connected and sufficient evidence must be presented to prove when and how the disability got worse.
Medical evidence—including statements from a doctor or medical provider that show exactly when and how the condition has worsened—is the most effective data for proving that the severity of your disability increased. Statements from the veteran, veteran’s peers, or family members can also help an appeal for an increased VA rating. Any proof that the severity of the disability increased and that the increase in severity changed the veteran’s quality of life will be essential to earning additional benefits. VA can also look at Compensation and Pension (C&P) exams to assist in determining a new rating.
VA rarely grants these initial effective dates when a veteran files for an increased rating. If you receive a decision with the incorrect effective date, it may be in your best interest to appeal that decision and receive the back pay you deserve.
If more than one year passes between the time your service-connected disability worsens and the time you file a claim for an increased rating, your new effective date will be the date VA receives the appeal.
How New and Relevant Evidence Can Affect Your VA Reopened Claim Effective Date
Whatever the reason, when a veteran reopens a previous claim, the effective date will be assigned on the date VA receives the claim for reopening. If the claim is reopened on the basis of new and relevant evidence that could alter the initial decision of the case, such as newly available service records, the effective date may end up being earlier.
New and relevant evidence has replaced the former standard of new and material evidence but does not come with a higher evidentiary threshold. Material evidence was required to pertain directly to the case in a way that explicitly proved the claimant’s argument. Relevant evidence still must pertain to the case but does not have to be as central in the claim to be accepted.
New and relevant evidence to be considered in a reopened claim must be new and official. The term “new” in this case means records that existed at the time of the initial claim but were not included in the original claim file. New events which occur after the time of the initial claim cannot factor into receiving an earlier effective date. The term “official” refers to records gathered from the VA Archives, Department of Defense (DOD), or any qualified military service department.
Under the Appeals Modernization Act (AMA), new and relevant evidence can be submitted under the Supplemental Claim lane. If a claim is granted on the basis of new and relevant evidence, the VA Supplemental Claim effective date will be assigned based on the time the original decision was made. This can result in a large back pay of disability benefits.
Clear and Unmistakable Error (CUE)
Clear and unmistakable error (CUE) claims are granted when VA made some type of mistake in reviewing a claim, and if that mistake had not been made, the claim would have been granted. CUE claims can happen when VA failed to apply a law that was in effect at the time of the claim, or did apply a law that was not in effect at the time. CUEs have a heavy burden of proof, making them much less likely to be granted than other options for moving up your effective date.
CUE claims also have very specific requirements that must be met. When making a motion for revision based on CUE, you must present comprehensive evidence of the claim, the facts when the claim was made, and proof that VA made a mistake given the information they had at the time. No new evidence will be considered in the case of a CUE claim.
If you can successfully convince VA that they would have been required by law to grant your claim had the mistake not been made, your effective date will be moved to the date VA originally received the initially denied claim. Depending on how long the process lasts, this can grant you a much earlier effective date. VA disability compensation will then be rewarded in the form of back pay.
Dependency and Indemnity Compensation (DIC)
Dependency and Indemnity Compensation (DIC) is reserved for the surviving dependent children or spouse of a veteran. For their family to receive DIC, the service member must have died from a service-connected condition or died in action during active military service.
If the death certificate lists one of the veteran’s service-connected conditions as a cause of death, VA should acknowledge without further investigation that the veteran died as a result of their condition and award DIC. If the service-connected condition contributed in some way to the cause of death, VA should once again presume connection without further investigation and award DIC. If the veteran passed away from a condition that was not service-connected, the children or spouse are still allowed to file for DIC, but the claim may take longer.
If the DIC claim is filed more than a year after the date on which the veteran passed away, the effective date will be the date VA receives the claim. If the DIC claim is filed within a year of the veteran’s death, then the effective date will fall on the date on which the veteran passed.
Total Disability Based on Individual Unemployability (TDIU) Effective Dates
TDIU, or Total Disability Based on Individual Unemployability, is a benefit equal to 100 percent VA rating compensation that is awarded to veterans that cannot find adequate work due to their service-connected conditions. Even if the veteran’s conditions do not add up to a 100 percent rating, if they cannot obtain and maintain substantially gainful employment, TDIU can award them full benefits.
The effective date for TDIU is usually the date VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, is submitted to VA. However, TDIU is sometimes filed as part of an underlying claim. This could potentially move the TDIU effective date back to the original claim for service connection, or when a claim was made for an increased rating. This is only an option if the service-connected condition in question prevented the service member from working.
Notice of Disagreement (NOD) Effective Date
A VA Notice of Disagreement (NOD) is a document the veteran can fill out and submit to VA disputing the initial rating decision. NODs must be filed within one year of receiving the decision letter from VA. If a NOD is submitted within one year, the effective date will remain the same as the initial date the claim was filed. As long as the veteran continues to meet VA deadlines, the effective date will be maintained. However, if the veteran misses deadlines or waits more than a year to file a NOD, the new effective date will begin from the time VA receives the appeal request.
Some effective date rules only apply to specific cases. For example, Nehmer rules apply only to veterans who experienced issues as a result of Agent Orange, a chemical used frequently during the Vietnam War. A lawsuit in the 1980s between VA and Beverly Nehmer ruled that any time a new disease is added to the presumptive list for Agent Orange, VA adjudicators must automatically review the cases of Vietnam veterans who were denied service connection or DIC benefits. Adjudicators will then determine whether or not the veterans qualify for these benefits under the newly added disease. VA must also assign the veteran an effective date based on when the claim was initially received and denied.
Nehmer rules only apply to veterans who served in Vietnam and experience a herbicide disease on the presumptive list for Agent Orange OR surviving dependents of a veteran who served in Vietnam during the war and died as a result of the newly added disease.
VA Claim Complete: When Do I Get Paid?
It’s important to remember that your effective date only matters if your claim is approved by VA. If your claim is denied, you will receive no benefits regardless of the effective date.
The amount of time it takes VA to pay out benefits depends on a number of factors. Everything from the severity of your condition to the quality of your claim can affect how long you have to wait for a claim decision. Once the claim is decided—assuming it’s approved—you should receive your first check within 15 days.
How Far Back Does VA Disability Pay?
Individuals who have their claim granted on a date after the effective date will receive a lump sum payment for all the benefits they have accrued. This lump sum is called VA disability back pay and has no limit. A veteran can be paid compensation for the entire amount of time between the time the claim is granted and the effective date.
Contact Tuley Law Office
It is not uncommon to receive an incorrect VA effective date for your disability claim. If not addressed, this mistake can cost you thousands of dollars. It’s important to check the effective date is correct to ensure you’re receiving the correct benefits for your condition.
VA rules are complicated and applied on a case-by-case basis, so it’s important to research the standards and regulations. An experienced VA disability lawyer can help you navigate the complexities to understand your VA rating decision. The legal team at Tuley Law Office have the knowledge and skills to provide you with the legal assistance you deserve.
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