Effective Dates
CCK Law: Our Vital Role in Veterans Law
An effective date is the date that a benefit became effective and it used by the VA as a start date for the payment of disability benefits for a claim. The effective date of a claim impacts the amount of retroactive benefits a veteran will receive.
- What is an effective date and why does it matter?
- How does VA decide your effective date?
- Effective Date for claim filed within one year of separation from service
- Effective Dates for Increased Rating Claims
- How to disagree with your effective date (Legacy System)
- Effective Dates for Rating Reductions
- Effective Dates for Reopened Claims
- Effective Dates for Eligibility due to a Change in VA Law
- Effective Dates for Blue Water Navy Veterans
- Effective Dates for Cases with a Clear and Unmistakable Error (CUE)
- Effective Dates for Dependency and Indemnity Compensation (DIC)
- How to disagree with your effective date (AMA, New VA Appeals System)
- When do rating decisions become final?
- How to preserve your effective date (Legacy vs. AMA)
- Intent to File Form
- Takeaways
Video Transcription.
Brad: Good afternoon, and welcome to Facebook Live with CCK, Chisholm Chisholm & Kilpatrick. I’m Brad Hennings and I’m joined by Emma Peterson and Courtney Ross. Today we’re going to be discussing effective dates. Before we get going, just to let you know, as you go along, if you have any questions, please put them in the comments and we will try to respond to any questions that we get while we’re on live. Or if it’s after the fact, please visit us there on Facebook, or at our web page, cck-law.com. With that, let’s talk a little bit about effective dates. So, in the context of VA claims, now, what is an effective date and why does it matter?
Courtney: Sure. So, an effective date is essentially the start date of your disability or when VA be able to start to pay you for that disability. And it matters because, like I said, it’s when VA will start to pay you for that condition. So if– as many of us know, VA claims can often take a long time before you actually get a favorable decision from VA. And VA has to pay you a retroactive payment back to the date of your effective date, once your benefits are actually granted. This means that the earlier the effective date, the more in the retroactive payment that you’re going to receive from VA when your benefits are actually granted.
Brad: So this is also what they call back pay?
Courtney: Yes.
Brad: Okay. And so, if it’s taking a long time, it will be in a large lump sum
Courtney: Exactly.
Brad: As well as your continuing monthly benefit.
Courtney: Exactly.
Brad: Okay. Emma, how this VA typically decide a Veterans Disability effective date?.
Emma: So it’s two factors. It’s either the date you filed your claim, when you’ve completed a claim and got all your information into VA, or the date entitlement arose, or whichever is later. Probably too many or’s in there. But, it’s either the date you file the claim or when the entitlement arose. What that means is the date that you completed all the necessary components, you needed to have to either secure disability benefits, meaning you have a diagnosis, a nexus to your service in an in-service incident, or you met all the criteria for an increased rating, as provided by the various diagnostic codes.
Brad: So it’s possible that– I think you laid out the scenario, even though you file the claim, let’s say in 2005, your entitlement might not have risen until 2006.
Emma: Correct, correct.
Brad: Okay, and so then the effective date would go to 2006, not back to 2005.
Emma: Right.
Brad: What about veterans who submitted their claim within one year of the day they left service?
Courtney: Yes. So, if you submit your claim within one year of the date that you left service, the effective date should actually go back to the day after your separation from service. So, it’s a special rule for when veterans file within a year of separation. If you file after the one year period then the regular rules that Emma just went over apply. So, it’ll be the date VA received your claim, or the date entitlement arose.
Brad: So, and I know most of our audience are probably currently veterans and have been out of service for some time. But if any active duty military folks are watching, or you know anyone that’s in that situation, please, please, please make sure you file a claim if you have a claim, if you believe you’re entitled to benefits within a year of you leaving service. It’s really critical. So that you can get those benefits flowing from the date, the early state to which you’re entitled. So now, moving along, how does VA decide effective dates for increased rating claims in particular,
Emma: So, same or the general rules apply. Date of claim or date entitlement arose, and that can lead itself to what we call staged ratings. So, you can file an increased rating for your knee, and as the appeal progresses, maybe your knee increases in severity. So you file, you submit some evidence from your doctor showing, maybe you’re entitled to, I don’t know, 20%. Then a year and a half later, VA finally gets around to scheduling you a VA examination, and at that point, your knee is even worse, and now you’re at a 30%. So you could end up with a rating decision, or maybe a board member awarding you a 20% for that first period of time during your appeal period. And then a 30%, the date entitlement to 30% arose as of the date of that VA examination, creating kind of staged ratings within an entire appeal.
Brad: So, the rating can fluctuate over a long period of time, because the VA claims often last so long.
Emma: Absolutely.
Brad: Okay. If I disagree with the effective date that VA chooses, is there anything I can do about it?
Emma: You can disagree with the effective date, but just note that there’s no sort of freestanding claim for earlier effective date. So, it needs to come from– you need to appeal it from that initial decision. You can’t three years later decide, “You know what? I didn’t like the effective date that rating decision awarded me, I want to appeal or I want to file a new claim for an earlier effective date.” That won’t work, you’ll have to do something else called CUE. But you can appeal the effective date if you– within the appeal period of whatever decision you receive, you can make an appeal for either an early effective date or pushing back staged rating, things like that.
Brad: Okay. So, VA reduces a veteran’s rating. What will the effective date for their new reading be? How does that work?
Courtney: First VA has a process that they’re required to go through in order to reduce your rating. First, they have to propose the reduction and the veteran will have 60 days to respond to that proposal before VA can actually finalize it and move forward with it. If the veteran doesn’t respond, or maybe he or she does, but the VA decides to move forward with the reduction anyway, they will issue another decision notifying the veteran that they are finalizing the decision. And in that letter, they will specify what the effective date will be for the reduction. And typically it’s a prospective date, so it’s in– its after the day of the decision.
Brad: So they’re not trying to claw back benefits when they reduce in that situation.
Courtney: Exactly.
Brad: Okay. So now if a veteran is reopening a previous claim that had been denied, how well their effective date be decided?
Emma: It depends on how they’re reopening the claim. If they’re reopening the claim– you filed a claim five years ago, you were denied. You file some new evidence five years later that wasn’t previously in the record, just maybe some new doctor’s notes that show you actually have a diagnosis for this disability, your effective date will be the date you file that claim to reopen. The same rules really apply. But if you– there are some special rules if service records come into your record that weren’t in your record before. Other things like that can kick the effective date back to maybe your initial claim.
Brad: So why would service records suddenly come into your file? Let’s say in 2019, when they weren’t there in 1970?
Emma: That’s an excellent question. I’m not quite sure why they go missing, but they do go missing. Some service records were destroyed in a really large fire. So the [inaudible] that you miss out there, but if they’re later discovered somewhere else in some other form and then added to the file, that can be a way service records can come into your record later in the claim process.
Brad: And so it’s a way to allow veterans to potentially get an earlier effective date, through no fault of their own because the government had done something with these records such that they weren’t available.
Emma: Correct.
Brad: Okay. What if a change in VA law makes a previously ineligible veteran eligible for benefits? For instance, presumption is established or the requirements for specific condition changed?
Courtney: Yeah, so I think the best answer for this is really, it depends. It’s going to depend on the law change and the facts of each individual veteran’s case. What you’d really want to do if you have a claim pending and a change in the law, or you believe that change in law affects that claim or appeal pending, is reach out to a representative to get their take on if the change in law is going to impact a possible effective date for your claim that’s pending at all. Because it really is going to be dependent upon the law change and the facts of the case.
Brad: And so when Courtney says to reach out to a representative, what we’re– who we’re really talking about our veteran service organizations, like our colleagues at the Disabled American Veterans or DAV, or VA accredited attorney, or VA accredited agent. Basically, you just want to talk to somebody who’s somewhat knowledgeable about the area, because they can help you out with the specific contours of your claim. Recently in the news, there’s been a lot about what they call the Blue Water Navy Veterans, and there was a big court victory for them in US Court of Appeals for the Federal Circuit in a case called Procopio. What do we know about the effective dates for these Blue Water Navy Veterans?
Emma: Sure. Similar to what Courtney says, it depends. We just don’t know how VA is going to go about implementing this. I know there are folks out there that have claims that are pending now for Blue Water cases, and so it’s a question of whether those claims will be granted and effective. The date you filed your claim, will be the date entitlement arose. Is VA gonna treat the decision, the Procopio decision as the date entitlement arose? We just don’t know. And then it’s further complicated by the whole– there’s a whole special group of effective date rules that apply to Vietnam veterans under the [inaudible] class action. So it’s a question of whether those roles are going to apply to these veterans. We just don’t know at this time how VA is going to handle Blue Water effective dates.
Brad: That sounds like an area that’s ripe for litigation, and I’m sure CCK is going to be at the forefront of trying to litigate back to make sure that all these Blue Water veterans get all the benefits they deserve.
Emma: Absolutely.
Brad: If VA admits to making a clear and unmistakable error or CUE, in deciding a veteran’s claim, how does that affect the veteran’s effective date?
Courtney: Yeah, so if the VA admits to a CUE, or clear and unmistakable error, in a previous decision, the veteran should be granted the effective date that would have been assigned, but for that error that VA previously made. If you have– if you received a decision from VA in 2006, and it stemmed from a claim that you filed in 2005, and tomorrow VA says or admits that there was an unmistakable error in that 2006 decision, in theory, the benefit should be granted from the date of your 2005 claim.
Brad: So CUE motions or CUE actions by VA can be very powerful, but rare.
Courtney: Yes. They also tend to be– it’s a high standard to meet. So you really have to show– I won’t get in too much into the details, but you basically, essentially have to show the outcome of the decision would have been different, but for the error that VA made. It’s a high standard to meet.
Brad: And our experience at CCK is we have won a number of CUE cases or C-U-E cases, but they are very difficult. And particularly, if you’re thinking about filing a motion to revise VA decision, you think it’s on the basis of CUE. Again, please talk to a representative before you do that, because it is often a very difficult fight and you want someone who’s really knowledgeable about the area. How do effective dates work for Dependency Indemnity Compensation or DIC?
Emma: Sure. So DIC benefits are awarded to veterans’ family, basically their spouses or surviving dependent children, sometimes even parents, after the veteran passes away. So the effective date will be the month after. The effective date would be the date, unfortunately, the veteran passed away, but you’ll start receiving compensation if you’re entitled to DIC the month thereafter.
Brad: Does that change at all if you file for service connection for the cause of the veterans death? For example, if the veteran died in 2000, and you file your claim for DIC benefits in 2019, I’m assuming the effective date isn’t going to go back to when the veteran died, is it?
Emma: Correct. It’s going to be the date you file the claim, so sort of the same rules. If you file within the year of the veteran’s death, I believe it goes– you get looped into that date after [clears throat] month, excuse me, after the veteran dies. But if you wait more than a year and you file later, it’s going to be date you filed your claim. The takeaway there is to file as soon as possible. But it’s okay If you haven’t, you still can file service connection for cause of death years later, and don’t be discouraged if you didn’t get around to it, understandably, at the time.
Brad: The reason I wanted to draw that out is just, again, to explain how confusing the effective date laws are, and that there is not always a one-size-fits-all answer. In fact, many of the cases that are litigated at the US Court of Appeals for Veterans Claims at the US Court of Appeals for the Federal Circuit have been involving effective date. There’s a whole body of law and can get, again, very complicated. What can a veteran– I think we already covered this, what a veteran does if they disagree with their assigned effective date, but does that change at all in the new system? VA has changed their appeal system, they are now under what they call the AMA, or the Appeals Modernization Act of 2017, which went into effect in February of 2019. So just a couple months ago, less than two months ago. Is anything different now, if you disagree with an effective date that’s issued?
Courtney: I think the point Emma made before still stands in that one, you can’t file a brand new claim for earlier effective date. If you get a decision or VA is assigning an effective date, even in the new system, and you disagree with it, you need to select the review option. And– we’re going to talk about this, I think, in the next couple questions, but now you have three different options to choose from for a review of that rating decision. You have one year from the date of the rating decision to select which review option you want. If you disagree with the effective date, you need to select one of those three options within a year of the decision to keep moving forward.
Brad: When do rating decisions become final? Meaning, what does that mean for your effective date, this finality?
Emma: Sure. So under the new system, under AMA, rating decision becomes final within a year, just like it does now. But if within that year, you pick one of the three lanes that Courtney mentions, your effective date is preserved and you get to move forward with your appeal like you do now. Except, instead of having to file a notice of disagreement, you now have a choice to pick a higher level review, or file new evidence to the supplemental claim, or file an NOD and go right to the Board of Veterans Appeal. You have some more choices there. We have lots of blog posts, some Facebook Lives about the ins and outs of your choices. But just know that the effective date rules stay the same in that you can keep that going and keep that portion of your appeal live as long as you continue to appeal within that one year period.
Brad: That makes a lot of sense for the new system for AMA appealed reform. What if you have one of these, what they call the legacy cases? Meaning, it’s been pending for a long time, it’s a rating decision before February 2019. How do you preserve your effective date in the legacy appeal system.?
Courtney: You have to continue to appeal within the time frames that VA requires, and it varies depending on the decision that you get. For a rating decision, you have one year from the date of that rating decision to file a notice of disagreement to continue your appeal and preserve the open claims, streaming your effective date. If VA continues to deny it, they’ll issue what’s called a Statement of the Case, or sometimes referred to as an SOC. You have 60 days in the legacy system to file a VA 9 form to the Board of Veterans Appeals, which is continuing your appeal again, keeping your claim stream open and preserving your current effective date.
The next decision you’re most likely going to get is a decision from the Board of Veterans Appeals. And under legacy, you have one option to appeal that and it’s to the Court of Appeals for Veterans Claims, and you have 120 days to do so. If you don’t continue your appeal to court, your decision or your appeal, or your claim would be final at the board, and your claims would die out of that one.
Brad: Okay. So we’ve talked a little bit about effective dates in the new system and the old system. What’s an intent to file form? And when can you use one? And legacy versus AMA?
Courtney: An intent to file form is a form that you can– it’s a form that VA has created and you can submit it to VA, and it indicates that you are planning to file an official claim with them. So under the legacy system, you could submit an intent to file at any point within the next year from the date that you submitted the intent to file, submit the actual claim form outlining the conditions that you’re claiming. The importance of it is that if VA grants benefits based on your claim, the effective date goes back to the date of the intent to file, not the date that you submitted the actual claim form. It’s changed under the new system. Like I said before, under legacy, the intent to file was applicable for any claim form that you’re submitting. In the new system, the intent to file can only be used for initial claims, meaning you’re claiming issues or conditions that you have never previously claimed before. If you are filing a supplemental claim, meaning you’re filing a new claim for issues you may have previously claimed, but claim stream died out– that was a lot of claims in there. But the claims that died out, new intent to files are not applicable. So VA will not acknowledge them if you’ve submitted an intent to file and are now filing a supplemental claim.
Emma: Even if it’s an increase rating claim?
Courtney: In increase rating claim, you do not need a supplemental claim for it. It’s considered the new claim, so it could be an initial claim.
Emma: That’s good.
Brad: So this all sounds very simple, and by simple it’s not simple at all, unfortunately. Again, we strongly encourage you to reach out to VSO, Veteran Service Organization, like DAV, VA credit attorney or agent to talk about your options, especially in light of the Appeals Modernization Act and the new system. How everything works as it relates to effective dates, it’s still being worked out. Some of the nuances, we have yet to see exactly how VA is going to handle those cases. Again, talk to somebody that’s knowledgeable in the area. Well, if we don’t have any questions, we’ll go with any final words.
Courtney: No, I think one of the key takeaways from the Facebook Live sessions we’ve done especially in light of AMA is that if you have questions– because the new system is not really tested yet, and we’re not sure how VA is going to adjudicate or handle a lot of these new changes in the law. Like you said before, I think it’s just really important to seek help from a representative if you’re not sure.
Emma: I would just add that if you want benefits and you’re planning on filing, file as soon as possible, just to preserve that effective date. Because it can be a matter of months, years before it’s going to be decided anyway, so you might as well give yourself the earliest head start you can. If you’re entitled to those benefits, why not file now, why wait? And then you’ll get a larger retroactive payment when and if you, hopefully, do get granted those benefits.
Brad: Well, great. Well, thank you all for joining us. Again, this is Brad Hennings with Emma Peterson and Courtney Ross, here at Chisholm Chisholm & Kilpatrick. Please again, reach out to us on Facebook, or reach out to us on our website at cck-law.com. We appreciate everyone joining us. And just to sort of add a few final words, and that is when we talk about the Appeals Modernization Act being an untested system, what we mean is we haven’t seen every permutation of claim. That’s why we don’t know how VA will handle particular situations. Obviously, the law is the law, but there’s always a lot of room for interpretation in that. Every veteran’s case is unique and different, and so probably needs to be handled that way. With that, again, thank you all for joining us, and we’re signing off.
