CCK Partner Zach Stolz was joined by CCK attorneys Jonathan Greene and Jenna Zelmer to discuss VA claim effective dates and some situations that may disrupt your effective date.
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.
Why are Effective Dates Important?
Effective dates are important because the amount of retroactive benefits that a veteran receives depends on their effective date. The earlier the effective date, the more retroactive benefits the VA must pay.
Retroactive benefits are the monies owed to the veteran by the VA for the time that has elapsed from their effective date to the time they are granted the benefits. It can take months or years until a veteran receives a grant of benefits, and for all of those months that have elapsed from the effective date to the present, the VA will pay the veteran those benefits that were not paid. Retroactive benefits come in a lump sum once the VA makes a grant of benefits.
How Does VA Determine Effective Dates?
The VA will typically grant benefits effective the date of the veteran’s claim, or the date that entitlement arose. When VA receives an application for benefits, a claim, they use the date of that claim to determine how much retroactive benefit they owe to the veteran upon a grant of benefits.
The VA can also determine effective dates based on the date entitlement to that benefit arose. For example, if a veterans files for service connection for post-traumatic stress disorder (PTSD) in 2009 but does not receive a diagnosis for PTSD until 2011, the VA will grant the effective date for when the veteran was diagnosed since that is the date entitlement arose.
Can I Get an Earlier Effective Date?
There are certain circumstances where the VA will grant earlier effective dates than the date of the claim or the date entitlement arose. If a veteran files a claim for a disability within one year of separation from service, the VA can grant benefits back to the date of the veteran’s discharge.
Unfortunately, if a veteran does not file within that one year period, they will not likely be able to get a grant of benefits effective the date of their discharge from service. However, there are situations where veterans may be entitled to earlier effective dates. One method is by using 38 C.F.R. 3.156(c) in the event that the VA denied your original claim for service connection and then later obtained service records in a subsequent claim that substantiated that original claim.
Effective dates can be very complicated and there are many different tools veterans and their representatives can use to argue for an earlier effective date.
Clear and Unmistakable Errors (“CUES”)
A clear and unmistakable error (“CUE”) is a rare type of error made by the VA that could result in an earlier effective date for a veteran. If a veteran was denied for service connection in 1990 and the VA misapplied the law or based their decision on inaccurate facts, the veteran may be entitled to a grant of service connection back to the date of that claim. CUES are a high burden of proof for the veteran.
CUES are a way to challenge decisions that are final, meaning decisions that were not appealed within the proper appeal timeframe. If a veteran’s claim is still open, they can appeal an unfavorable decision and do not need to claim a CUE.
When a decision becomes final, meaning a veteran does not appeal a VA decision within the appeal deadline, they must reopen their claim. If you do not challenge that final decision based on a CUE, your can argue to reopen your claim with “new and material evidence.” New and material evidence is something that the VA did not have when they denied your original claim.
The effective date for a reopened claim is the date that claim to reopen was filed.
Effective Dates for Increased Rating Claims
Effective dates can differ between increased rating claims and service connection claims. For increased rating claims, the VA will look at when the veteran’s disability increased in severity and grant benefits from that date. They VA can look at lay statements, medical evidence, and Compensation and Pension examination results to determine when the veteran’s disability became severe enough to warrant an increase, also considered the date entitlement arose.
Increased rating claims can also be subject to staged ratings. Staged ratings are when the VA rates a veteran’s disability multiple times over the course of an appeal, increasing or decreasing the rating based on the severity of the veteran’s condition at various points in the appeal process.
Rating Reductions and Effective Dates
The VA can reduce a disability rating if they see that the severity of a veteran’s condition has decreased, warranting a lower rating than they were initially granted. Generally, if the VA finds that a reduction is warranted, they will make the effective date the date of that decision to avoid establishing an overpayment for the veteran.
Effective Dates for Total Disability Based on Individual Unemployability (TDIU)
Total Disability based on Individual Unemployability (TDIU) is a benefit for veteran who are unable to obtain and maintain substantially gainful employment due to their service-connected disabilities. TDIU allows for veterans to be paid at the 100% rate without their service-connected disabilities adding up to 100% on the VA rating schedule.
Veterans can apply for TDIU by submitting the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The VA often grants entitlement to TDIU based on the date the veteran submits the application. However, TDIU can be included as part of an underlying claim for benefits, meaning that a veteran’s TDIU effective date can go back to the date of their claim for service connection or an increased rating if that claim is open.