Getting an Earlier Effective Date for VA Disability Claims

The effective date is a crucial part of any award of VA disability benefits.  As part of an award of benefits, VA establishes an “effective date” of the award, which directly corresponds with how much compensation they will receive.  Securing the earliest possible effective date is a crucial part of any claim, as establishing an earlier effective date may entitle the veteran to more retroactive compensation.

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What is an Earlier Effective Date?

An effective date is used by VA as a start date for the payment of disability benefits for a claim, in other words, it is the date that a benefit became effective.  Often, this date is the date that the veteran filed his or her most recent claim for disability compensation or increased compensation.

Sometimes, this is not the earliest possible effective date, and there are several ways to argue for an earlier effective date if you believe you are entitled.

Why an Earlier Effective Date Can Matter

As mentioned above, an earlier effective date is important because it could result in a veteran receiving more retroactive benefits.  Generally, the earlier the effective date, the more retroactive benefits VA must pay.

Retroactive benefits are the monies VA owes to a veteran for the time that has elapsed from the veteran’s effective date to the time they are granted benefits.

For example, an award with an effective date one year earlier would entitle the veteran to one year of retroactive benefits.  If an effective date of 5 years earlier is awarded, the veteran would be entitled to five times the award granted by VA.

How Veterans Can Argue for an Earlier Effective Date

Veterans are not always given the earliest possible effective date, but there are several ways to argue for an earlier effective date if you believe you are entitled:

Clear and Unmistakable Errors (“CUEs”) for an Earlier Effective Date

A clear and unmistakable error (“CUE”) is a rare type of error made by VA that could potentially result in an earlier effective date for benefits.  CUEs are a way for a veteran to challenge a final VA decision, meaning a decision that the veteran did not appeal within the proper appeal period.

New Military Records

Under 38 C.F.R. 3.156(c), a veteran can receive an earlier effective date if VA denied their original claim for service connection, and then later obtained service records in a subsequent claim that substantiated the veteran’s original claim.

VA outlines specific types of service records that would qualify under the regulation.  These records can include:

• Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements are met
• Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records
• Declassified records that could not have been obtained because the records were classified when VA decided the claim

New and Relevant Evidence Submitted Within an Appeal Period for an Earlier Effective Date

Under 3.156(b), if a veteran submits new and relevant evidence within the appeal period of a decision from the Regional Office (RO), and VA does not provide notice or a determination as to whether that evidence is new and material, the veteran may be able to argue that their claim is still open with VA.

If the claim was denied previously, but then granted on records that have recently been discovered, the regulation requires that VA consider an effective date back to the time of the previously denied claim.

Here is an example:

A veteran filed for service connection for a left knee disability in November 1990 and was denied by the RO in March 1991.  The RO’s decision states that they were not able to find evidence of the veteran’s claimed in-service injury.  Veterans have one year from the date of a rating decision to submit a Notice of Disagreement (NOD).

However, in June 1991, within the one-year appeal period, this Veteran submitted service records that VA did not consider which showed in-service treatment for his left knee disability.  VA did not send him notice of a determination as to whether that evidence is considered new and material.  The Veteran did not submit a NOD within the appeal period and VA closed his claim.

The Veteran then submitted a claim to reopen his claim for service connection for his left knee in 2000.  The RO subsequently granted him service connection.

In this scenario, since VA did not send him notice of a determination regarding the evidence he submitted in June 1991, the Veteran could argue that his claim is still open, and that he is entitled to an effective date for his left knee disability potentially back to his original claim in November 1990.

Again, in this scenario, VA did not address the Veteran’s new evidence, and failure to address the evidence may prevent VA from closing a Veteran’s claim, leaving it open and unadjudicated.

Claims Filed Within Year from Discharge

For veterans who file a claim for disability compensation within one year of their military discharge, VA can grant benefits back to the date of the veteran’s discharge.

However, this 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)

The same principle applies to dependency and indemnity compensation (DIC) claims that are received within one year of a veteran’s death.  If such a claim filed by a surviving spouse or family member is granted, the effective date is the first day of the month in which the veteran died.

Presumption of Service Connection

There are certain conditions that VA presumes are connected to military service, meaning the veteran does not need to prove direct service connection.

Examples of this include Vietnam veterans with illnesses connected to Agent Orange exposure and Nehmer class veterans.

If VA grants presumptive service connection for your condition and receives your claim within one year of discharge, the effective date is the same as the date that the illness or injury first occurred.

If VA receives your claim more than one year after discharge, the effective date remains either when they received your claim or when your illness or injury first appears.

Securing the Correct VA Benefit Compensation for Veterans

If the effective date is incorrect, then a veteran is likely being deprived of the correct compensation they are entitled to. For example, an award with an effective date one year earlier would entitle the veteran to one year of retroactive benefits. But, if the effective date may be earlier, perhaps years earlier, this entitles the veteran to many times the award granted by VA.

Our Veterans Benefits Lawyers Can Help

CCK’s veterans benefits lawyers have many years of experience in determining whether VA has awarded the correct effective date in a veteran’s claim. Our veterans’ lawyers are experienced with VA’s regulations and court case law that may help a veteran secure an earlier effective date and also secure his or her correct compensation. Contact us today for a free consultation at 800-544-9144.