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.
Zach: Good afternoon everybody my name is Zach Stolz. I’m an attorney at Chisholm Chisholm & Kilpatrick and we are going to do a Facebook live conversation today about effective dates for VA compensation claims. Joining me to discuss effective dates in VA compensation claims is Jenna Zellmer, an attorney with Chisholm Chisholm & Kilpatrick and Jon Greene also with the firm. If you have any questions please let us know and also please check us out on Facebook and at our website www.cck-law.com where we have much more information and more in-depth information about effective dates and other issues facing veterans today especially for VA compensation. So let’s talk about effective dates. Jon, what is an effective date and why does it matter in the VA compensation area?
Jon: Well, thank you for that question Zach. In the veterans disability context, an effective date is the date that a benefit became effective. So if a veteran is disabled in some way and that disability becomes service connected, the effective date is just the date that VA will start paying disability benefits for that disability.
Zach: So that sounds simple enough. But what happens if a veteran has to wait sometimes years, sometimes months, oftentimes many years, before VA makes the right decision and awards service connection or awards the right level of compensation. What happens then? What is a retroactive benefit?
Jon: So when an effective date is established, what that means is VA will start paying disability compensation on the first of the month on the subsequent month after the effective date. So for each month, that veteran is going to be getting some monetary benefit usually depending on the level of severity of disability. So as you just stated, sometimes it takes months, if not years, to be awarded benefits, for all of those months that are in the past and are from the effective date up to the present, they will pay you to sort of catch up for those monthly benefits that were not paid and that those are the retroactive benefits. And oftentimes because it takes so long for these claims to be decided, the veteran will be getting X amount of months times a certain monetary monthly benefit and in one lump sum payment get those retroactive benefits, which unfortunately accrue no interest.
Zach: So it’s important for the advocate, and for the veteran to make sure that they are preserving the proper effective date so that the maximum amount of money that the person is owed and has earned is awarded even if it’s awarded at a later date.
Jon: The effective date has a significant impact on the amount of compensation a veteran will receive overall globally.
Zach: So what- when VA says, and along these lines, terms that you see often in VA and this one is for Jenna is, they will say something on their decision that the date the entitlement arose. Can you walk through what that means?
Jenna: Sure, Zach. So generally VA will award the effective date from either the date the veteran made the initial claim or the date entitlement arose. So the date the veteran made a claim is pretty self-explanatory. Whenever VA receives an application for benefits, that’s the date the VA will, when they eventually grant the benefit, they’ll say, “We owe you money back to this date that we received this application,” but it gets a little bit trickier because sometimes veterans will file claims for disabilities that they don’t have diagnoses for or some other element of the claim hasn’t been established. So for example for PTSD, stressors haven’t been verified, that sort of thing. And so when that situation arises the veteran has made a claim but VA doesn’t concede that entitlement has arisen yet because there hasn’t been something that’s met. There hasn’t been an element that’s been complete. So in that situation even though the veteran may have filed a claim earlier, VA will only pay the effective date at the time that they find all the elements of the disability have been met.
Zach: Okay. So it gets complicated really fast. Again this is the plug for visiting our website www.cck-law.com where we have a lot of information about effective dates. It is certainly something that is an important part of a veteran’s compensation claim so you’re going to want to talk with your representative if you’re using a service organization or a law firm, be sure to talk with them and understand when the effective date is going to be because it is every bit as important as how much compensation and every bit as important as when establishing service connection. It is a key part of any VA compensation claim and with that said, what about veterans, Jon, who submit their claim within one year of the day they left service. Are there some special rules for that?
Jon: Yeah there are a lot of special rules when we’re talking about effective dates. As Jenna said, basically, you’re looking at the date of claim. However, if a veteran files for disability compensation within one year of service, they get out of service, three months later they file for service connection for a certain disability. Within the normal rules of date of claim, it would be effective the date they filed assuming all the other elements are met, however, there is a special rule that applies for veterans who file within one year of service. It will go back to the date of discharge. So it will give them up to 11 months of additional benefits preceding the date of claim.
Zach: One of the big benefits that is available to veterans when they are unable to work because of their service-connected conditions is Total Disability Based on Individual Unemployability, which the acronym is TDIU. Why is it, and this is for either one of you, why is it that VA oftentimes will award the effective date for the TDIU for the 100% rating the day that the person applied for Individual Unemployability rather than back to the original date of the underlying service-connected conditions?
Jenna: So like I mentioned before, VA often looks for the date of a claim and so when VA receives a 21-8940.
Zach: Which is the claim.
Jenna: Right. Exactly.
Zach: The form that a person applies for the TDIU.
Jenna: Right. It’s the TDIU application. When they receive that form, VA often will just assign that effective date back to the day they received that form. But if a veteran has multiple service-connected disabilities and they have an underlying increased rating claim, VA shouldn’t be looking just at that form. They should be looking to find out whether or not IU, TDIU, was ever a part of that increased rating claim and it almost always is a part and parcel with the increased rating claim, and they should have determined whether or not they could award an earlier effective date based on when that increased rating became so severe that it precluded employment.
Zach: So when does VA decide effective dates for increased rating claims?
Jenna: So that goes back to your question about when entitlement arose. So increased rating claims are a little bit different than service connection claims. VA can assign an increased rating claim as soon as they can determine the earliest termination of when the veteran’s disability increased in severity. Do you want to?
Jon: Yeah, I think that when you’re dealing in the context of increased ratings, you’ll commonly see, as Jenna had previously mentioned, the date entitlement arose. So over the life of an increased rating claim, which can often take years, the severity of a disability is going to change and at times increase and that increase can be demonstrated by such evidence as a compensation and pension exam or a private exam and VA will then throw in what’s called staged ratings. So for a certain period of time the veteran will get a specific rating and then that disability rating will increase hopefully for another period of time when it has established that a higher entitlement arose for a higher disability rating.
Zach: Let’s get into a little bit of claim stream and we just got a question that actually dovetails into that which a person wrote in to say that he was awarded TDIU in 2005. The psychologist said that the stressor was from his original enlistment date. Could he receive a new effective date back to or around 1986? Which I’m assuming is probably the date of his enlistment or the date of his discharge. So in any case, how can he go about getting an earlier effective date? Let me warn you, this will not be a complete answer because there are so many variables as to whether that is a yes or a no but we could run through some scenarios in which it is a yes and we can run through some scenarios in which it is a no so whoever wants to chime in first on that.
Jon: I would like to first say we need more information than what was provided but given what we do know, I would say generally speaking, unfortunately Bob, no. However there are some- there are some ways in this complicated world of effective dates where you can argue for entitlement to a date for TDIU prior to, I think it was 2005, and usually it would have to do when you were service connected for a certain condition. So if there had previously been a claim for a condition that was then denied and then later on, I’m assuming sometime around 2005, claims were filed for certain conditions and ultimately it was determined that those conditions should be service connected and they were severe enough to warrant a TDIU rating. In terms of going back earlier, there is the possibility that you could go back via something via regulation 3.156(c) if the grant was later made after service department records were obtained and part of the new claim that was, again I’m assuming around 2005, the previously denied claims sometime around 1986 or shortly thereafter, it could then be argued that that needs to be re-adjudicated and hopefully granted thereby giving you an earlier effective date for those conditions. That’s one thing that is possible but again I feel like we need a little bit more information.
Zach: Well perhaps an easier answer is we would have to look at the case but it does- that’s a great question and I’m really glad it was asked because it does show how complicated this can get. We could go through and a good trained representative can go through and establish whether or not there is any merit in seeking back pay back to 1986. Another way that Jon did not mention but I know Jenna is ready to talk about today is if there was if there was, let’s pretend in that scenario that there was an original decision that dated back to 1986 that involved this claim. It is possible even if that claim stream closed, in other words even if Bob didn’t appeal that decision, that if the Regional Office committed a clear and unmistakable error, there might be a way to go back to 1986.
Jenna: Right. So if you are looking at a decision back from the 1980s or any decision really prior to the present that you didn’t appeal and you think that the Board either misapplied the law or had some inaccurate facts when it denied your appeal, your entitlement, you can file something called a CUE claim so it’s clear and unmistakable error and it’s a pretty high burden. It’s pretty rare.
Zach: A high burden for the veteran.
Jenna: Yes. It’s a high burden for the veteran and it’s a pretty rare claim but if you can establish that for some reason, you know, the RO or the Board, the RO is the Regional Office. If somewhere in the VA, they made a clear and unmistakable error, they didn’t properly apply the laws, it was understood at the time and that’s a really important fact. It has to be the law at the time that the VA made the decision. It can’t be you know, more liberal law today. Or if, you know, they just had the wrong facts then they’re gonna need to reopen that claim and it’s possible that they could grant you service connection all the way back to that original claim.
Zach: If you disagree with the effective date or if the veteran, I should say, disagrees with the effective date that was assigned, what can they do about it?
Jenna: So it depends on where in the claim stream you are. If you have an open claim, you file a claim, VA grants but they mess up the effective date, you can file a Notice of Disagreement and say, “I filed this claim on such-and-such a date, entitlement was had- was established at that date but you just misread the date of the claim” or for some other reason maybe it was a typo anything like that, you can file a Notice of Disagreement and file up all the way up to the Board of Veterans’ Appeals. If it’s a closed claim, then that’s a little bit different and that’s when you kind of get into clear and unmistakable error. VA has said, “You can’t just file a claim for an earlier effective date at any time. You have to establish that it’s a clear and unmistakable error.”
Zach: And Jon, what are staged ratings?
Jon: So as previously discussed briefly, when you’re awarded service connection for a disability, generally speaking, you’re given a rating and you’re given an effective date and both are very important, basically equally important in terms of your overall compensation that you’re going to receive. So the effective date will assign a certain disability rating and then what’s possible is for a different period of time, they will assign a different disability rating with a new effective date for that disability rating. So you can kind of see from a certain date, let’s say 2000 to 2005, you’ll be rated at 10% for a psychiatric disability but the evidence, and through advocacy and argument, it’s established that the severity of the psychiatric condition increased warranting a 50% rating in 2005. Then it could be increased for a different period of time effective 2005 at the 50% rate and you could see additional steps along there. So it’s a disability rating for a certain period of time. And the way that I think about claims in general is you have to have a legal basis for arguing how far back a claim goes and then you also have to have a factual basis, so the effective date argument has to be based on the law that exists and all of the effective date rules that we’re really just scratching the surface of, but then you also have to establish the facts that the condition warrants disability rating X at a certain percentage rating.
Jenna: And I think VA often times will get those staged ratings wrong because they’ll just look at the date that the veteran went to a VA examination. And so if you have an increased rating claim, the veteran files an increased rating claim, let’s say in 2000 and he doesn’t get an exam until 2003. VA- and that exam demonstrates that he would be entitled to a higher rating, VA will often just say he gets a higher rating from 2003. But that’s ignoring the first three years that that time period was on appeal and so that goes back to your factual point. So it’s really important to double-check the effective dates and if the VA examination, even though it was completed in 2003, if it was talking about treatment notes or a history that went back earlier than that, then you should be getting a rating earlier than 2003.
Zach: What about when- VA occasionally will propose to reduce a veteran’s rating and they maybe go through with a rating reduction. What will the effective date for the new rating be?
Jon: Well, before- they can’t just go ahead and reduce something. They have to provide some notice that they’re- based on some information they’ve received, they’re proposing to reduce. And the veteran should then have the opportunity to respond with evidence as to why a reduction is not necessary, is not warranted. And if ultimately VA does decide that it is warranted, generally speaking, they’re going to make it effective from the decision and that is to avoid putting the veteran in a situation where they’re going to have to have an overpayment created where they were getting paid more than the VA deems that they should have been paying and then they’re gonna owe a debt. So for the most part, reductions don’t just get applied years back where all of a sudden a veteran then has to pay VA thousands of dollars. However, it is possible that those reductions could go back earlier if there’s evidence of fraud or if they didn’t inform VA of a dependency change or something like that. But as far as ratings go in the context that we’re talking about, usually it’s going to be from the date of the decision.
Jenna: And clear and unmistakable error also comes in for rating reductions a lot of times. If a veteran has been reduced, but believes that that reduction was erroneous even though the reduction has already taken place, they can still say, “It was clear and unmistakable error and VA never should have reduced me,” and then in that case the effective date will go all the way back and he should get retroactive payment for the amount of time that he was being paid less than what he should have been paid.
Zach: Well because this is so easy to understand, I wanted to throw another wrench into this. And again, you can find more information at cck-law.com. You can talk with your representative about this but it is an important and it is a complicated area. Let’s talk a little bit, because we threw words around like claim stream. We threw words around like Notice of Disagreement. Can we talk about when a claim, in the current system and I’ll make it even more complicated, when it becomes final and then we can talk a little bit about what’s going to happen allegedly in 2019 or what is scheduled- it shouldn’t say allegedly- what is scheduled to happen in 2019 with Appeals Reform because that will have a lot to do with when effective dates are assigned as well. There’s a lot going on in VA law right now. There are a lot of changes that were mandated by Congress in the past year and signed by the President. So let’s talk about how it exists now and then maybe I’ll get the other board and we’ll talk about how it’s going to exist in the future.
Jenna: Okay. You can hide me for a second.
Jon: Well, I think just now that we have a visual, it’s nice to see that, okay so as I think Jenna discussed earlier in our program, generally speaking the effective date is going to be the date of the claim or entitlement arose whichever is later but where we’re looking at it here you see at the top there hopefully, that’s clear, claim in the blue rectangle. The date of that claim you’re going to get a decision, you have an opportunity to appeal within a year for a Notice of Disagreement. Generally speaking you’re going to get a Statement of the Case after that point which you perfect your appeal to the VA Board and you’ll get a Board decision. Let’s just take it all the way through. You can go to court outside of the VA system and can get kicked back. All of that, the claim date is still your claim date because the claim stream has been kept alive. So if something is awarded, generally speaking again should go back to the date of claim. So this can go up, it can go down as long as it’s still continuously appealed it should go back to the date of the claim. If anywhere along in this process something isn’t appealed, then the claim stream effectively dies and it’s difficult to resurrect. There are some ways to do that but generally speaking then it becomes final and you can file again but then you’re essentially going back to go and getting a new claim date. So- and we don’t need to get in too much detail on this claims process but this is, as it says at the top the Legacy Appeals. This is sort of soon to become the old way of doing it, obsolete, and we’re going to be entering the world, the brave new world of Appeals Reform.
Zach: We’ll keep blocking Jenna out.
Jon: I’ll be honest with you, I don’t know exactly how this is all going to work but there you go. You have your claim and hopefully the claim date will still preserve what will be the effective date for, generally speaking, you’ll get a decision and then you can choose one of three lanes. You can still go to the Board. You can still go to the higher level review and ask somebody else to look at the case based on the facts before the adjudicator when the decision was issued and say, “Come on. Somebody else needs to look at this, somebody higher level and hopefully give us a different more positive rating decision with a grant.” Or you can file, go to the supplemental claim lane and file with new and relevant evidence. And as you see with all these arrows back, you can get a decision in any one of these lanes and then switch lanes. It looks like as long as you’re preserving that, you should be preserving the claim date as the effective date. And as we can even see, you can file a Notice of Disagreement and go down to the Board decision which can then be appealed to Federal Court outside of the VA system and even that can then be brought back or resurrected with new and relevant evidence in the supplemental claim lane. So these can essentially never end as long as you always have new and relevant evidence to present to try to win the claim. But the reason why it’s nice to see the visual is you can kind of see that this is important. This is going to, generally speaking, determine your effective date because this, even under Appeals Reform we don’t know how this is going to compare in terms of timeline to the Legacy system but I am sure we’re going to be measuring these in years and not months.
Zach: So to get back to the world we live in now, that was a little preview and there’s a lot of information about Appeals Reform out there on CCK’s website cck-law.com and we will have many as the approaching date of 2019 comes for Appeals Reform, I can assure you we will have many discussions about how that’s going to work. I know that veterans groups in general are very concerned about how it’s going to work. It is supposed to be an improvement and hopefully it will be but getting back to kind of the world in which we live now, there is no supplemental claim lane right now. There is no way to preserve your effective date so if you do not appeal, if you have not appealed to the Board or to the court or to a DRO, a Decision Review Officer, your claim has become final. So if you now want to go back and revisit it, you’re in the world of reopening your claim. You’ve lost your original effective date. So when you reopen a claim what’s the effective date going to be? Jenna? Since we blocked you out with a poster the last two times.
Jenna: So I guess reopening has a couple different meanings. Jon mentioned earlier 3.156(c). In that situation, if you have a claim that was denied and that denial is final and then later on you file a new claim and VA has records that should have been associated with the claims file in the beginning and the original claim, but for some reason VA didn’t have them and now they find them and they grant the claim, then that original claim can be reopened. And so that’s one situation in which you can reopen a claim. If you just have a run-of-the-mill claim that’s been denied and that denial is final, in order to file a new claim and try to reopen that claim, you need to file something called new and material evidence and so something that VA didn’t have before the first time it denied the claim. And if that’s the situation, you’re still just going to get the effective date back to the day you filed the second claim.
Zach: Very clear. What about a change in law? And this is gonna be- we’re gonna do two more questions and then we’ll see if there’s anybody that has any they want to give to us. But what about a change in law, let’s go back so there’s no finality. There’s a pending claim. Appeals have been filed correctly. The claim is still open. What happens if VA changes the law to a veteran’s benefit?
Jon: I mean it- so let’s assume that as you said, the claim is pending and then there’s a change in law and the context that you often see this in is when a presumption has changed. So now a certain condition that previously wasn’t on the list of presumptive conditions for Agent Orange exposure is added and it’s during the pendency of a claim for that specific condition. That is a liberalizing change in the law that would apply favorably to the claimant and they would get the benefit of that change and it would apply back to the date of claim. It gets a lot more complicated than that when we’re dealing with a claim that was denied and became final because it wasn’t appealed, and then later on the law changes and then the veteran or dependent family member later files for a benefit in terms of figuring out what effective date would apply but generally speaking, the claimant is going to get the benefit of the change in law. If it works the other way, if it is not a liberalizing law, it would work to their detriment. They should, and during the pendency of the claim, they should get the benefit of the old law.
Zach: Also complicated. Let’s end on kind of a hypothetical question. A veteran files a claim in 2005. They award him 30% rating. They award him service connection and a 30% rating for post-traumatic stress. He appeals the rating, so the service connection part is over now. He’s now in a fight over what he should be properly rated. They give a new rating decision in or they give a new decision in 2012 and they raise the post-traumatic stress rating up. So when they decided in the favor of the 30%, so they decided 2005, 30%. Let’s say it’s 50 in 2012 and he goes and gets yet another higher rating, let’s say he gets 100%. What date is it gonna go back to? Is it gonna go back to 2005? Is it gonna go back to 2012? Are there gonna be some staged ratings? How does it work?
Zach: It does depend.
Jenna: So I think that that goes a little bit back to what we were talking about before when Jon was talking about staged ratings and I was talking about VA exams. So it’s an initial rating. So you filed the claim and you got service connection and that whole claim is still open. It’s not final, then it’s possible that he could get the 100% rating all the way back to 2005. It really just depends on the evidence that’s in the record and what the Board or VA is saying about that evidence. So if it’s over a course of, it looks like about 7 years, 2005 to 2012, it’s also very possible that in that 7 years his rating or his disability has increased in severity and if that’s the case then he’s probably gonna get staged ratings. But like I said it’s very important to look at the evidence and make sure that VA isn’t just assigning those staged ratings on the date of the exams but actually on when it was as early as possible, ascertainable, that his disability increased.
Jon: I was just gonna add the same thing, Jenna, that her concern about VA assigning the increase on the date of the exam is very much a reality in what you often see in these cases. So there probably is an argument there to assign a higher rating either the 50% or all the way prior to based on the evidence of record because I’m assuming that VA did probably, just in that scenario, just rely on the results of a compensation and pension exam.
Jenna: But yeah. As long as the claim is still open, that whole time period is available and so he could get higher ratings at any point in that time period. It’s a little bit different if the claim is closed and if he had gotten service connection in 2005 and then later files an increased rating claim, the only time period would be, if he filed that increased rating claim two years later. That original rating decision that granted service connection is final and now we’re just talking about from 2007 to the present.
Jon: Usually if you’re getting an independent medical exam report, you want them to do what’s called a retrospective medical opinion and look at the evidence of record and talk to the veteran and talk to whoever would be we able to provide helpful information and make an opinion on to the appropriate rating, not just for today but also back in time dating back to, as in this case, as early as 2005.
Zach: All right, I think that’s about enough for effective dates for right now. There is still much that can be discussed in effective days. There’s still a lot of information available to you on cck-law.com. We encourage you to visit the website. If there are no questions I wanted to thank everyone for tuning in. I’m Zach Stolz from Chisholm Chisholm & Kilpatrick. Thanks to Jenna Zellmer and Jonathan Greene for joining me today. Thank you all very much.