Achieving an Earlier Effective Date for VA Compensation
As part of an award of benefits, VA establishes an “effective date” of the award. 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
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.
How Veterans Can Argue for an Earlier Effective Date
There are several methods veterans can use to argue for an earlier effective date of their benefits:
Clear and Unmistakable Errors (“CUEs”)
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.
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.
New and Material Evidence Submitted Within an Appeal Period
Under 3.156(b), if a veteran submits new and material 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.
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.
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 caselaw that may help a veteran secure an earlier effective date and also secure his or her correct compensation.
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