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How to Get an Earlier Effective Date

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Jenna Zellmer: Good afternoon and welcome to CCK live. My name is Jenna Zellmer. I am an attorney at CCK practicing, primarily, at the Court of Appeals for Veterans Claims representing veterans, who have been denied benefits at the board level. Joining me today are Alyse Phillips and Kevin Medeiros who are also court team attorneys. Today, we’re going to be talking about how to get an earlier effective date for your disability. So, before we get into the specifics of how to get an effective date, we wanted to touch briefly on what is an effective date. Usually, when VA awards benefits, they also award an effective date, which is the date that VA uses as the start date for the payment of disability benefits. Essentially, it’s the date that VA has determined you’ve become entitled. Usually, when you have a claim that has been pending for many years, the effective date is going to be the date that you filed your most recent claim or your increased rating claim. Sometimes, your increased rating claim effective date will be dependent on when the evidence demonstrated that you had a more severe disability than you had in the past. But generally speaking, you can assume that the date that you filed your most recent claim is going to be your effective date, unless, you have some of these other situations that Alyse and Kevin are going to be talking to us about today. Alyse, what don’t you kick us off why is an earlier effective date important?

Alyse Phillips: They’re important because they can affect whether you are eligible for what we call retroactive benefits, or how much additional retroactive benefits you could potentially get. So, what’s a retroactive benefit? Essentially, it’s back pay in a way. It’s the benefits that VA owes you between the time of your eligibility date or your effective date and the time that you’re actually granted. So, that’s going to depend on how long that time period is. But generally speaking, the longer the time period, the more retroactive benefits you would be entitled to. If your effective date went back a year earlier, you would be entitled to a year more of retroactive benefits.

Jenna: Great. That kind of goes back to what I was saying is that if your claim takes a long time, those retroactive benefits add up. So, it’s important. That’s kind of why we want veterans to know about earlier effective dates because we don’t want VA to make a mistake in calculating that, a veteran not to understand that or not to notice it, and then, not be able to get the money that they were due. As we mentioned, veterans are not always given the earliest possible effective date but there are several ways to argue that. Just to preface, this is a really complicated area of the law. It’s also kind of always changing in terms of what the scope of a claim is or what evidence would entitle you to an earlier effective date. So, if this is something that you think you’re entitled to, please reach out to your veteran’s benefits representative, either a veteran service organization or an attorney. If you have any questions, you can feel free to look at our website, cck-law.com. We definitely have some blogs on this and some more information that, hopefully, can help. But let’s just kind of cover the basics today of high-level view. Kevin, why don’t you start us off with clear and unmistakable errors?

Kevin Medeiros: Sure, yes. So, this is probably the most difficult hill to climb
when seeking an earlier effective date. It’s called clear and unmistakable error. The short form is CUE. It’s a rare type of error made by VA that could potentially result in an earlier effective date. It’s a way for veterans to challenge a decision that had ultimately become final. It’s really one of the only ways to do that and it’s difficult to do because you have to show a clear and unmistakable error. To do so, you need to show that the outcome would have been different had the adjudicator properly applied the law when they made the decision or certain facts weren’t before them. It’s probably the most difficult way to get an earlier effective date but there are scenarios where it is a viable path to an earlier effective date.

Jenna: You can’t emphasize enough that it is probably the most difficult way to try to get an earlier effective date. It’s extremely complicated. It doesn’t happen very often. Part of the reason for that is because, generally, when a rating decision is final, meaning it wasn’t appealed within one year, that’s the end of the story. You have to start all over from the beginning, unless, you can prove that that original rating decision or the RO didn’t have the right facts before and it didn’t directly apply the law. That is a really high burden for veterans to meet. It’s the exception to the rule that everything should be construed liberally for the veteran, or that the benefit of the doubt should always weigh in favor of the veterans. So, if you’re in the realm of CUE, I would just, again, make sure that you talk to your representative or someone that’s familiar with this type of law and hope for the best. But speaking of final decisions, there are some scenarios where a previously final decision that wasn’t appealed can be reopened. Alyse, why don’t we talk about how that happens with military records?

Alyse: For new military records, under Section 38 CFR 3.15 6C, you could potentially get an earlier effective date if service records were associated with your file that were not part of the file at the time of your denial. But it’s a little bit trickier than that because the service records have to be relevant official service department records and they have to have existed at the time that VA denied your claim. Again, they have to have not been associated with the claims file. So, what we typically see as the trickiest part is proving that those records were relevant. I won’t get into the nitty-gritty of that but it can’t be just any service department record. They do have to be relevant. They have to have affected your claim in some way. VA has some examples of types of service records that can constitute existing service records that are new to your file. That could include service records that are relevant to any in-service event, injury, or disease. You could also maybe corroborate something. They could be records that mention the veteran by the name. They could also be additional service records that are, at that time, declassified that weren’t originally declassified at the time of your denial. So, there’s a large spectrum of service records but they do have to be relevant to the claim.

Jenna: This is a really complicated regulation and I think it’s helpful sometimes to kind of pull back and think about why it exists. And so, I always like to distill it down into, essentially, what VA is saying is that if there were records that they should have had at the time of the original denial that for some reason, they lost, or, for example, they were declassified like Alyse mentioned. And so, they didn’t have them but they should’ve had them, then, that previous denial can be reopened once you get those records into VA. So, it’s kind of saying, “VA should’ve known better. But, at the time, they didn’t have all the information, and the veteran shouldn’t be punished for that.” Again, I think that it’s helpful to kind of think about why these particular records would warrant an earlier effective date when, generally, the rule is that a final denial is done. It’s an interesting rag and it can be really helpful to veterans, especially, for service connection for a psych. We see this a lot with PTSD if a veteran had been denied because their stressor hadn’t been corroborated way back in the eighties or even before that. And now, the stressor is corroborated and it’s based on a record that VA should’ve had. That can open up the floodgates and a veteran can have retroactive benefits based on that earlier effective date for years. So, it can be life-changing if you can get that reopened. Finally, in terms of records and evidence, 3.15 6C has a similar, maybe, a brother or a sister regulation. 3.15 6B. Kevin, do you want to talk a little bit about that?

Kevin: Right. So, 3.15 6B is a little bit different in that new and material evidence submitted within the appeal period. So, before the time period VA prescribes some sort of appeal document. Whether it’s a notice of disagreement or a substantive appeal needs to be filed. If a veteran submits new and material evidence within the time period before the expiration of the appeal period, then, the effective date might be preserved if it relates. For example, if the VA denies a higher rating for a condition and new evidence comes in within one year of that rating decision showing that it might be more severe than VA had decided it was, that new and material evidence might be able to preserve the effective date rather than VA saying the condition got worse on this date when that evidence came in. If it was within the one-year appeal period, it could preserve the original effective date. So, the evidence needs to relate to some aspect of the claim. If it’s a service connection, it needs to be relevant to nexus. If it’s an increased rating, it needs to be relevant to severity. But if VA doesn’t really address the new evidence that I was talking about, the original date might be preserved in that scenario. So, it’s a way that if VA denies a claim, and then, new evidence comes in within the appeal period. If VA never addresses it, then, we can sometimes argue that the claim remains open back to a date earlier, then, it might have been awarded later.

Jenna: Yes. That’s a really good point because a veteran might not know that, right? And so, there might be new evidence submitted, and then years later, they file a new claim because they had been denied and VA says, “No, we already denied you this. You have to submit new evidence to reopen it.” Essentially, the new and material evidence that was submitted within that one year of that first rating decision keeps that claim open. And so, again, this is really complicated and it requires a lot of thorough record review. But when you do find something like that, it’s really exciting for the veteran, and for us as advocates. We have a blog where you can read all about how to reopen a VA claim based on new material evidence too. So, that’s on our website and I think we will drop a link down in the comments below. One other thing I would just note is that we, as veteran advocates, are not the only people who find this interesting. The Supreme Court actually, a couple of years ago now, issued a decision all about 3.15 6B and kind of what constitutes relevant evidence. And so, that’s exciting. There are not that many veterans’ cases that go to the Supreme Court, so, when there is, it’s always fun to read about it. That case is called Kaiser. Alyse, let’s talk about claims filed within a year of discharge.

Alyse: Sure. This is another way to get an earlier effective date with your technical claim. So, as long as you file your claim within a year of being discharged, VA, if they grant it, they will grant your benefits back to the date of your discharge rather than the date of your claim. I do want to just note that this only applies if your claim is initially successful. If it’s denied and becomes final, this exception isn’t going to apply.

Jenna: Yes. If you file a claim within a year of your discharge, it can go back to your discharge if it’s granted. But if it’s denied, then later down the line, you want to appeal or you want to file a new claim. You have to reopen it, and that originally gets granted. You can’t argue that it should go all the way back to your date of discharge. This is something that we see a lot. Veterans don’t really understand how effective dates work. They think that because of disabilities related to service, that means it should go all the way back to the date you were discharged, but unfortunately, that’s not how VA has made its rules about effective dates. In addition to veterans, we have some information on this, generally, who can get benefits. Family members, surviving spouses, or certain dependent family members can also get benefits which are called dependency and indemnity compensation. And so, it’s important to kind of know about the effective dates for those claims as well.

Kevin: This is similar to a veteran filing a claim for service connection within the year of service. If a surviving spouse files a claim within one year of the veteran’s death, they’re also entitled to an effective date of the first day of the month in which the veteran died. So, if the surviving spouse doesn’t file the claim for eleven months after the veteran’s death, she won’t have the effective date of her claims. She’ll get the retroactive benefits back to the month of death. Again, this doesn’t apply if that initial claim is denied and becomes final. But if it is filed within one year, the effective date will be the month of the veteran’s death. We have more information about that on the blog in addition to just more general information about DIC benefits.

Jenna: That’s a nice little buffer for a veteran’s wife who’s obviously dealing with a lot of their husband or wife just recently passed. You have a little bit of a time frame to get everything together to file that claim. Then, the last effective date situation where you could potentially get an earlier date is presumptive service connection. Alyse, what does that mean? How can you get an earlier effective date for that?

Alyse: First, I’ll just briefly say what presumptive service connection is. Basically, there are certain conditions that VA presumes are going to be connected to your military service. Probably, the most common is Agent Orange in veterans that served in Vietnam. Those Nehmer class veterans. VA recognizes that if you served in Vietnam, you presumptively have been exposed to Agent Orange. And then, if you have a certain condition that’s presumptive to Agent Orange exposure, you’ll get a presumptive service connection. If VA is going to grant you presumptive service connection, say you have maybe, CAD, as an example. You served in Vietnam and you filed your claim within a year of discharge. The effective date is going to be the same date as your illness or injury first occurred. It’s not going to be the date of your claim. However, if you do not file your claim within a year of discharge, it’s going to go back to the normal rules. It’s going to be either the date that you filed your claim or the date that your injury first rose. Whichever one’s later, which is our normal rules. We don’t apply presumptive service connection.

Jenna: Yes. You touched briefly on Nehmer class numbers and I would just note that if for some reason, you filed a claim before the disease became presumptive and you were denied because it wasn’t connected to service, Nehmer was a class-action lawsuit that happened after many veterans’ disabilities became presumptive. They wanted an earlier effective date because it was essentially based on VA not keeping up with the science and not knowing that these disabilities were related to Agent Orange. And so, that is really complicated. We’re not going to get into it today but I would just reiterate what I’ve already said many times. If you do have something like that, I would strongly encourage you to talk to a representative because they can kind of walk you through the steps and make sure to see if you do apply for a Nehmer effective date. Great. I think that’s really covered it. Like I said, this is a really brief overview of all the different ways that you can get an effective date. There is more information on our website. This is definitely not every single detail, but we just wanted to kind of give you an idea of what to look for. Hopefully, this would help and you can kind of get an idea if you might qualify for an earlier effective date.

Alyse: I would just emphasize how complicated of an area this is and how it is always beneficial to reach out. If you have any questions, look at our blogs and also reach out to any service or person that you can.

Kevin: Like we’ve said, it’s important to have someone guide you through the process. VA law is very complicated, so, I always encourage people to reach out to someone that might be able to help them.

Jenna: Thank you for tuning in. Like we all said, be sure to check out our blog. We have our podcast. We’re on social media, and of course, you can see our website at cck-law.com. Thanks for tuning in and we’ll see you again soon.