Getting Earlier Effective Dates in VA Claims and Appeals

When the VA awards service connected compensation, in effect the VA is deciding three separate issues at the same time. The first issue is that the disability is related to service. The second issue is the degree of the disability (the rating). The last issue decided is the effective date of the award. This is the date from which the VA determines the veteran should receive compensation. In this guide, our team sheds light on the significance of the effective date and how securing the earliest possible date can substantially impact the benefits you receive.

Making a VA Appeal for an Earlier Effective Date

In VA law, when a veteran’s claim is denied, he can always reopen his claim with new and material evidence. This is true when the veteran is contesting a determination on service connection or the rating (in fact, in a rating case, the veteran does not even have to present new evidence, but just claim that the disability is worse). But this concept of reopening a claim is not true when it comes to effective dates.

The only time to contest the effective date of an award is within the appeal period of the decision. No matter where the decision is issued, it is critical that the veteran quickly determines if the effective date is correct; once the appeal period ends, it becomes very difficult to contest the effective date. The only way to appeal the effective date after the decision is final is to show that the VA made a clear and unmistakable error (called a CUE claim).

The law on effective date is that it is typically the date that the veteran filed the current claim. There are many exceptions that allow a veteran to go back further—sometimes decades. But determining whether the effective date is correct cannot be done without a thorough review of the veteran’s Claims file (aka C-file). The C-file has information on any and all claims that a veteran has filed since discharge. It gives the veteran’s advocate not only a chronology of when claims were filed, but also what evidence was submitted when; stated differently: when the VA knew what.

Two areas where we can find effective date mistakes are cases regarding Agent Orange and PTSD. Agent Orange cases have their own special rules for effective dates due to the Nehmer litigation. The Nehmer rules call for much more favorable decisions on effective dates,often going back years to when the veteran first applied and not just when the veteran reopened. 

In PTSD cases, it can be that the veteran applied and was denied multiple times before seeking legal assistance. In these cases when the VA finally grants service connection, there are instances in which the VA has to grant benefits all the way back to the original application date if the grant was based on service records newly associated with the veteran’s C file.

Understanding the regulations and special rules governing effective dates can ensure that veterans receive all benefits to which they are legally entitled. An earlier date could mean more back pay.

Effective Date Special Rules – Case Example

A hypothetical veteran, Vet, filed an initial claim for service connection for anxiety the month after he left service in 1989. He never heard anything from the VA about this claim and never followed up because he was having difficulty adjusting to civilian life and did not want to deal with the VA. Many years later, Vet is still having anxiety issues and is eventually diagnosed with PTSD. He files a claim for PTSD in August 2014. In July 2015, the VA issues a rating decision and grants him service connection for PTSD and sets the effective date as the date of his claim in August 2014. Is this correct?

The key here is whether Vet’s claim in 1989 was adjudicated or properly finalized and whether or not the anxiety that Vet claimed in 1989 is the same mental health condition that was eventually diagnosed as PTSD. In regards to the first question, a claim remains in a pending status when the VA has failed to notify a claimant of the denial of the claim, mail a copy of a Board decision, provide notice of appellate rights, or issue a Statement of the Case. In Vet’s case, he never received acknowledgement of his claim for anxiety in 1989 nor did he receive any correspondence from the VA denying his claim. Therefore, his claim remained pending until it was finally adjudicated in 2015.

Which bring us to the second question – is the PTSD that the veteran was eventually diagnosed with a continuation of the anxiety that he claimed in 1989? In order to get the effective date moved back to 1989, Vet will have to show that his anxiety after leaving service was really PTSD. The best evidence in this case would be an independent medical opinion by a psychiatrist or psychologist who can look at Vet’s mental health history and provide an opinion that the anxiety he suffered from in 1989 was in fact PTSD. If Vet is able to successfully argue this, he should be able to receive retroactive benefits back to the date after he left service in 1989.

Note that this special effective date rule gets more complicated if there are intervening claims between the initial claim that was never adjudicated and the later claim where the veteran was eventually awarded benefits. This is due to something known as the “implicit denial rule,” which means that if the VA denies benefits for an intervening claim, it typically cuts off the ability to get benefits all the way back to the initial unadjudicated claim. The question in such instance is whether the intervening claim could be considered a claim for the same benefit that was not adjudicated in the initial claim. In Vet’s case, if he had filed an intervening claim for a mental health condition in 2005, and that claim was denied, it is likely that he would be unable to get benefits back to the initial 1989 claim when he is eventually awarded benefits in 2015 due to the implicit denial rule. But if he filed a claim for a back condition in 2005, he should be able to argue that a denial of that claim is not an implicit denial of his pending anxiety claim from 1989.

As you can see, the area of law surrounding effective dates for VA benefits is dense and often frustrating for veterans. But there is also potential for substantial retroactive benefits if one of the special rules for effective dates applies.

Steps to Securing the Correct Effective Date

• File Promptly: Submit your claim as soon as possible. Delays can affect your effective date and, consequently, your compensation.
• Document Meticulously: Maintain comprehensive records of your medical conditions and their progression. This documentation can be crucial in establishing an earlier effective date.
• Seek Legal Advice: An attorney specialized in VA claims can provide invaluable assistance in navigating the complex rules surrounding effective dates.

Key Considerations for Your Effective Date

New and Material Evidence

Submit any new, relevant evidence as soon as you obtain it. This could lead to a reconsideration of your claim and potentially an earlier effective date.

Presumptive Service Connection Conditions

Understand the rules for conditions like Agent Orange exposure. Filing within a certain period after discharge can affect your effective date.

Increased Ratings and Disability Worsening

File for an increase in disability rating promptly if your condition worsens. The date you report this change can influence your effective date.

Clear and Unmistakable Error (CUE)

If a mistake was made in a previous decision on your claim, a CUE claim can lead to an adjustment of your effective date.

Post-Discharge Claims

Filing a claim within a year of discharge can impact your effective date. The rule is different if your initial claim is denied and later reopened.