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Effective Dates

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Christian McTarnaghan: Hi everyone and welcome to another edition of CCK live. My name is Christian McTarnaghan and today I am joined by Michelle Detore and Kayla D’Onofrio. We are going to be talking about effective dates. So, let us just jump right into it. Right at the basics: What is an effective date? So, an effective date is actually really important in VA law because it is the date that you are going to start to get paid for your VA benefits. When VA grants a disability claim, they are going to assign an effective date to that claim and your effective date is going to vary depending on when you submit your claim and the circumstances under which your claim is granted. We are going to get into a lot of those specifics today. Give you some examples. Talk about some.

Christian: I do not know if I want to call exceptions to the effective date rules, but basically ways that you can get the earliest effective date possible. Effective date is most important and probably what most of you who are watching are going to be most interested in. It is important because you will get retroactive benefits back to your effective date. And unfortunately, this is an area of the law where VA makes a lot of mistakes. I focus my practice on court. I have a lot of effective date cases I have had over the years my practice. I am sure Michelle and Kayla at the agency, you see a lot of effective date issues. So, a little bit more, specifically Kayla, you want to talk a little bit about how VA determines effective dates or claims?

Kayla D’Onofrio: Yeah, sure. So, when VA is making a decision on a claim that you file for service connection, when they make the decision there are signing both for reading and effective date. Like Christian said, the effective date will kind of determine how far back your payment’s going to go. In general, the most common way that we would assume that an effective date would be assigned is the date that the veteran files their claim. It is the most common way that we see them assign effective date. The other way, or the other effective date that they will assign is the date that you first got your illness or injury or what they say is the date that the entitlement arose. So, if you file a claim and then you do not actually have a diagnosis until several months later, it is going to be the date of the diagnosis versus the date of the claim.

Kayla: If you were diagnosed with the condition several years ago but you filed a claim today, your effective date is going to be the date that you filed your claim today. So, it is going to be whichever one is later is the one that VA will assign. If you submitted a claim for disability within one year of the date that you left active duty, a good thing to keep in mind is that the date that entitlement arose, in VA’s eyes, is going to be the day after the date of your separation. It is not going to be the day that you first incurred your injury or your illness while you were in service. And the reason is that VA will not consider an active service member as someone who is eligible for benefits. You do have to be a veteran. So, the day following the date of your discharge is the date that they will assign the effective date.

Kayla: Otherwise, if you submit a claim more than one year after the date of your discharge, it is just going to be the standard way that they assign effective dates. Which would be the date of your claim or the date entitlement arose whichever is later.

Christian: What happens if a veteran’s rating changes and how does that impact effective dates? Or sort of when they are going to start to get paid maybe for that increased rating that they were just granted by VA.

Michelle Detore: So, a lot of times when a veteran files for an increased rating, your effective date essentially can sometimes change. But when I say this, I mean that your original date for service connection stays the same so you knew you applied for something unless you appeal for an earlier effective date. They are not going to now bring your effective date back to your new claims. What changes is if you did not appeal within a year, then your effective date is typically the date of claim. So, let us say you were granted service connection for your psychiatric disorder at thirty percent from 2010. That was in 2015, and then in 2018 you decided, “It is worse and I want to file for an increased rating.” So, in 2018, that would be your new effective date because that is your new date of claim. That is what we check, we sometimes call a stagger effective date, because you have your effective date for service connection and now you have your effective date for possibly a higher rating.

Michelle: So, that is kind of typically when you see an effective date could maybe it changed based on the actual rating not so much the date of service connection. Sometimes, the effective date can change based on one entitlement arose. Let us say you did apply in 2018, they give you about fifty percent. But then an examination from 2020, they thought maybe they give you seventy percent rating. So, they gave you the fifty from 2018, and then the seventy percent from 2020. Sometimes, it is staggered like that with your effective dates. That is usually typically what would happen when you file for a new plan. There are additional ways you can kind of change your effective date as well. Let us say for some reason, first, you appeal it so you get a rating they grant service connection. You feel you do not agree with it, but there are additional ways that you could possibly get error.

Michelle: I will talk about a few different ways. So, the first one is going to be that a prior decision contained a clear and unmistakable error. I think that what is very important with this is to understand this is a very high threshold. Kayla, Christian, and I reviewed the case. We all have to be able to come to the same determination. So, the clear and unmistakable error, it is typically that the law was misapplied or the correct facts were not before the judicator at the time. So, the correct facts are basically meaning that they are due to hit or miss something that was of record at that time.

Michelle: Let us just say I once had a case where the judicator missed the fact that the records actually did contain a diagnosis for presumptive condition. We can prove it. We know the records were there. Then the next thing is that you have to show that had the judicator or the law that applied, the outcome would manifestly change. So, here it is a presumptive condition. VA says that a veteran has diabetes. They were in Vietnam. It is presumptive service connection we award. In this case, if the examiner or the judicator caught the fact that the veteran had diabetes of record, the outcome would have manifestly change. So, that he would have and should have been awarded service connection for diabetes. Here you will be filing a claim for revision or possibly when a veteran gets service connection for earlier effective date asking based on CUE and a prior decision, which is the clear and unmistakable error that was done in that. He should have been entitled to that earlier effective date for when they first applied for service connection. So, that is one way you can get an earlier effective date.

Christian: That is also just jumping in quickly. It is really important that you made the point that this is really hard, right? Manifestly changed outcome, when I am looking at a case and I am trying to see if we can go for CUE is almost always the deciding factor of whether we are going to be able to go for it. It is just really hard to meet that burden because you have to show that you would have gotten service connection, or an increased rating, or some other benefit or outcome, but for the huge mistake that VA made. So just a word of caution for anyone whose ears perked up trying to challenge really old rating decisions, it is very hard to do.

Michelle: Yeah, and that is why I also think it is really important to say that everybody had to come to the same conclusion. Like Christian said, it is a multi-step process. So, yeah, maybe there was that error but again, it had to manifestly change the outcome. Basically, would you have been awarded benefits if that error had not and it has to be undebatable. That is why I like using the presumption kind of example because if VA has a condition, you are diagnosed with that condition. VA has conceded that you were exposed to herbicides. VA conceded you were in Vietnam. VA has conceded by the regulations diabetes as a presumptive condition. That is something that had the judicator and the examiner realize you have that diagnosis, the outcome would have likely been different in that. So, that is why I like using that kind of example.

Michelle: Another way that you can get there, which we a lot of times do in psychiatric cases, is what we call three-point-one-five-six-c. It is a regulation that controls it. It is basically showing that service records were available but they were not of record or were not considered when a veteran previously filed. So, you file a claim and I will use a psychiatric condition and your stressor is based on a fire or plane crash while you were in service. You were in the Navy, because I like to use deck logs is a good example. This event happened while you were in the Navy you were on a ship. There was a plane crash or there was a maybe a fire. And when VA first adjudicated your claim, they said that they could not verify your stressor. They denied you. Fast forward a few years later, you were able to obtain deck logs that verify the stressor. Those deck logs have been around since you were in service, so they were records that were available. They just were not associated with your claims file.

Michelle: So, the receipt of those new records reopen a prior claim because it is new service records that were not previously addressed. In those service records, for this purpose, verify your in-service stressor. That is another way that we can look into getting an earlier effective date. So, Kayla kind of talked about this. That if a veteran who files a claim within a year of their military discharge, sometimes VA does get this wrong where they will go with your date of claim rather than the fact that the regulations say. If you file within a year of military discharge, you can get to go back to the date of discharge. It is something to keep in mind too. And then one last way that we commonly can use, and I will just start by saying this is only for what we call Legacy cases. That means cases that were prior to February 2019.

Michelle: We have another regulation. It is one three-point-one-five-six-b for this one and it is called New and material evidence. So, if New and material evidence was submitted within a year of a rating decision or the decision that VA issued, then VA has to readjudicate that prior claim. Think about that standard and being that it is new evidence that was not before the examiner. It is material because it speaks to the issue at hand. A good example is the fact that a veteran files for service connection for PTSD, VA denies them based on the fact that they do not have a diagnosis. Within a year of that rating decision, the veteran submits evidence showing that he treats for his diagnosed PTSD. So, they tell them that, “Hey, I have gotten a diagnosis. The records are at this location and it is the VA Medical Center just at Providence Rhode Island.

Michelle: So, they are identifying evidence. Its materials are claimed because it is also speaking to the reason they were denied because the lack of diagnosis. That is something that sometimes gets missed because a veteran did not file a new claim or the veteran maybe accidentally filed a new claim when they should have made the appeal, because sometimes you just do not know what is the proper form or the proper next step. So, that is something to be looking at as well as was evidence submitted within a year of the decision to be able to bring it back further. That is one of another common way that we see it, but again, it is only for older cases that we consider to be in the Legacy system and not in the Appeals Modernization system.

Christian: Yeah, this is all really important because I talk to my clients a lot. They ask me, “Well, how far is my claim going to go back? I filed my first claim in 1987.” Generally, it is going to be to the date of your most recent increase rating claim but what Michelle talked about is so important. If you proved clear and unmistakable error, it goes back to the date of the decision that was made denying you as if that decision never happened. Same thing with three-point-one-five-six-c, once they get those service records VA needs to consider the original claim. And so, these are provisions that are going to help get your effective date back as far as possible. Again, these are difficult to prove and cases to win but nonetheless, if an increased rating is granted or if it raises over a level of compensation, a lot of retroactive benefits of the veterans should have been getting but never got. Those are hugely important sort of exceptions to the general rule to remember. So, you were just talking about the difference a little bit between Legacy and the Appeals Modernization Act or the AMA, Michelle. Kayla, you want to talk a little bit about how and whether people can maintain their effective dates from Legacy to the AMA?

Kayla: So, if you are in sort of your Legacy appeals process, depending on where you are you do sort of have an option that you can opt into AMA. Under the current regulations, if you receive a statement of the case or an SOC in Legacy, you have the option to opt into AMA via any of the three appeal options that they provide. Or if you receive a supplemental statement of the case, you can do the same at that point in time. If you opt in from one of those stages, you are able to preserve your effective date. It will kind of continue your claim as if you kind of continued in the same system, or the same appeal has been continuously prosecuted from the date that you filed the claim. However, if you receive a board decision in Legacy and it denies your claim, unless you appeal to the Court of Appeals for Veterans Claims which you have a hundred and twenty days to do from the date of a Legacy court decision, that decision will become final.

Kayla: You cannot file a new claim in AMA and preserve your effective date for that claim. If you received a Legacy court decision, that will become final. However, if you opted into AMA previously or you have had an appeal continuously through the AMA system and you receive a board decision under AMA, you do have the option to file a supplemental claim with that board decision within one year of the board’s decision. You can preserve your effective date for that claim if that is the system that you are currently in. But, once you receive a poor decision in Legacy that, unfortunately, is sort of a final decision unless you appeal to the Court of Appeals for Veterans Claims.

Christian: So, that is the difference sort of between AMA and Legacy. So, Michelle, but what if a change in the law happens sort of outside of what the change in the law was when we went from the Legacy to the AMA system? What if a rule changes? What if a regulation changes? What if a new law comes into play? How does that affect effective dates?

Michelle: Sure. Typically, when a new law is passed in VA recedes your claim within one year of the law regulation change. The effective date will be the date of the law regulation change. It also benefits people sometimes when their claim is filed outside the year, because there is a possibility that you can get your effective date up to one year before VA received your written request or your claim for benefits. So, it is typically the two things you see with the change of law, however, it can be different on the change of law so I am going to use an example. Recently, the Blue Water Navy Vets, this basically gave Blue Water Veterans that had an Agent Orange related condition, the opportunity to refile their claim and the effective date instead of going back to the date of the law change. It would actually go back to the date of their and it should go back to date of their underlying first claim for benefits as long as all the other elements for service connection are met. And obviously, we also need to get presumptive condition of VA’s conceded was related to said exposure. But it can be a little different depending on each law change because sometimes the law change has certain rules like this one, where it goes beyond what the regulations allow.

Christian: That again is another really complicated area of the law, that we are just trying to skin the surface of just to give you a little bit of an understanding about how it works. And so, finally we are going to talk a little bit about DIC claims. Kayla, how do those work when it comes to effective dates?

Kayla: So, one of veterans passes away. Their surviving spouse or dependent child does have the option to file what is called the DIC claim which is usually based on service connection for the veteran’s cause of death. DIC can also be granted depending on whether the veteran was rated at a hundred percent. If it is their spouse, if they were married for ten years prior to the date that they passed away while they still at one hundred percent for that ten years. DIC can be applied that way. In general, DIC claims the effective date is really going to depend on when it was filed. If a veteran passes away and the claim is filed within a year of their passing, it will go back to the date of death. However, if you file outside of one year, it will go back to the date of claim. It is really going to depend on the date that you filed the claim. If it is something that you are seeking, I would recommend looking into it sooner rather than later to try to get the earliest effective date that you can.

Christian: And those are clearly very hard times and it is definitely not going to be on the forefront of your mind to probably have to file a form. I know that I deal with clients that are dealing with the passing of a loved one and the last thing they want to do is to file a form. But, to sort of preserve your rights and to get the most benefits possible, it is really important that you get those forms and get those claims in timely for sure. So, that is the last of our official remarks. Are there any closing thoughts that you guys want to leave them with?

Michelle: Yeah, I went through a lot of ways that you can get an earlier effective date but, one thing we really do want to stress is they are hard. They were really hard to argue. They were really hard to prove. So, if you think your effective date when you get to sign is incorrect appeal it. It is easier to appeal something when you are in the window than to come back and say that there was an error, and get VA to agree there was an error to prior decision. That is just one thing I would say. Always make sure you are appealing effectively if you think it is not correct, as well as the rating, if you think that is also not correct.

Christian: Absolutely. Because on some of these VA forms, there is a checkbox for rating. There is a checkbox, at least in the Legacy system, for effective date. And I definitely had wished that some of my clients could go back in time and check that effective date box. So, if there was any advice that I was going to give it is going to be exactly that. Anything to add, Kayla?

Kayla: I would just say we have a lot of resources available on our website, some blog posts, and some other information about different ways to obtain earlier effective dates and just in general how effective dates work. So, I would definitely recommend taking a look at a lot of the different resources that we have that dive a little bit deeper into a lot of these topics.

Christian: Absolutely, that is great advice. Well, thanks everyone for joining us today and do not forget to follow us on social media for Veteran related news and updates.