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Here’s A Common Issue With Effective Dates For VA Disability Claims
Appealing Your VA Claim Effective Date
Veterans who suffer from service-connected disabilities can qualify for tax-free monthly VA benefits from the Department of Veterans Affairs (VA). The VA will qualify a Veteran for VA disability benefits if they find that the Veteran’s symptoms are severe enough to warrant at least a 10% disability rating and that the Veteran can directly link their disability to their time in the military.
Service-connected disabilities can include mental or physical conditions with a nexus – a verifiable connection – to a Veteran’s military service. The VA does not always approve active duty members applications for disability benefits – sometimes Veteran’s claims are denied due to lack of medical evidence, due to a lack of a verifiable direct service connection, or other reasons. However, even if the VA approves your claim, it may make a specific type of error that can leave a gap between when you receive approval and when your disability benefits start arriving.
Veterans frequently contact our office regarding effective dates for their claims. They have many questions about how the effective date was assigned and whether the VA made a clear and unmistakable error when assigning their effective date. The effective date is important in a VA disability claim, as it is the date the VA will pay back to when a claim is granted. For example, if a claim has an effective date of May 1st, 2015, that isn’t granted until May 1st, 2016, the Veteran is entitled to VA disability compensation for the year that passed since the effective date.
If your effective date is several months to a year before you start receiving Veterans benefits, the compensation that you receive will retroactively make up for the time since your effective date. However, the VA sometimes makes mistakes related to effective dates that can lead to confusion and frustration for many disabled Veterans. In this post, we will discuss a common issue with effective dates for VA disability claims, as well as how to respond if you have issues with your own disability claim.
How Often Does The VA Make Mistakes Regarding VA Disability Claims?
Generally speaking, the effective date will be the date the VA received the claim or the date that entitlement arose, whichever is later. Additionally, if a claim is filed within a year of the Veteran’s discharge, the effective date would be the day after discharge. However, the VA does not consistently hold to these rules. While mistakes on the part of the VA related to effective dates are not something every disabled Veteran will deal with, it’s important to prepare yourself and be informed so that you know what to do if there are issues related to your effective date.
Common VA Mistakes For Effective Dates
There are times when the VA will make an error when assigning an effective date for either service connection or an increased evaluation. Either of these errors can cause confusion for Veterans who have qualified for disability benefits or had their disability ratings raised.
Occasionally, the VA will use a medical examination date as the effective date instead of the date the VA received the claim. This may seem like a minor error, but Veterans who simply accept a VA medical examination date as the effective date could be losing out on compensation they are entitled to. This is because the date evidence is submitted or the date of the existence of material evidence does not determine the effective date of a VA disability claim. As mentioned before, the effective date is assigned based on when the VA receives the claim, or the date entitlement arose, whichever comes later.
If a Veteran’s Compensation & Pension exam occurred after their entitlement for benefits arose, the Veteran’s disability compensation may end up being less than they deserve if the VA makes an error. If the VA makes the date of the Veteran’s C&P exam the effective date for their benefits, the Veteran reserves the right to appeal the VA’s decision with the help of an experienced attorney.
Recent Effective Date Errors Our Attorneys Have Noticed
The mistake mentioned above has been a common issue for Veterans we represent.
Here’s an example: The Veteran filed a disability claim in 2015. The VA then ordered a compensation and pension examination (C&P). The Veteran went to the C&P examination but was denied service connection. The Veteran continued to appeal the matter until it got up to the Board of Veterans Appeals (BVA) in 2020 and got remanded. The remand instructed the VA to give the Veteran another C&P examination.
So, in 2020, the Veteran gets another C&P examination. When the Veteran finally gets the rating decision in 2021 granting service connection, the Veteran is surprised to see that the effective date is 2020 (the date of the exam rather than 2015, the date of the original claim). When that happens, the Veteran has the right to appeal the effective date of that decision or to appeal for an increased rating based on their medical records and can have a reopened claim. Utilize the graphic below for a visual representation.
In this situation, the VA has erroneously given a disabled Veteran less compensation than they deserve – five years of tax-free benefits have been denied this Veteran because of an effective date error. In this circumstance, the Veteran has every right to appeal the VA’s decision and request that he or she receives compensation for the time since entitlement arose.
Appealing Effective Date Errors
What happens when the VA gives a Veteran the incorrect effective date? Just like when the VA makes an error on your claim, you can file an appeal. You can appeal an effective date on your own, but we have successfully helped hundreds of clients appeal incorrect effective dates. If the VA made an effective date error on your claim and you would like to appeal, contact Berry Law.
With an experienced attorney’s help, you can make a much stronger case to the VA that they have given you an inaccurate effective date. Our skilled Veterans disability lawyers have years of experience dealing with the VA, and one of the members of our team can help you navigate the appeals process with ease.
The VA appeals process begins at the regional level at your local VA facility. However, if the VA does not conclude at this stage in the appeal that they made an error regarding your claim, the appeal can move to higher courts if necessary.
Ideally, the outcome of an appeal will be that the VA grants retroactive compensation to a disabled Veteran for any benefits that they deserved due to an effective date error. With the help of an attorney, you can compile evidence that can make a strong case to the VA that they need to re-evaluate aspects of your disability claim.
Effective Dates and Creation of Evidence
Court rulings have sided with Veterans regarding effective dates for claims. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) found that the date evidence was submitted or the date of the creation of evidence does not determine the effective date of a disability. It was determined that the effective date should be set to the date the disability manifested itself. So, when evidence is submitted or created does not impact a Veteran’s effective date. For this reason, medical examinations play no role in determining an effective date.
What does this mean for disabled Veterans? It means that you may be able to receive retroactive compensation for the years or even decades that you have had a service-connected disability. If you qualified for entitlement to benefits decades before your disability claim was filed and approved, you may be able to get benefits dating back to the development of your disability. Talk to your attorney about how you can qualify for compensation for time prior to your claim’s approval.
Your Exam Date Is Not Your Effective Date
If a Veteran files for service connection or an increased evaluation, the VA may wait months or even years before providing a VA examination. If the VA then grants the Veteran service connection and gives them an effective date that matches the VA medical examination date, the VA has avoided compensating the Veteran for the period between filing and the examination. Such decisions can be challenged and can result in the VA granting the Veteran an earlier effective date and additional back pay awards.
If the VA has only granted you benefits dating back to the time of your Compensation & Pension exam, make sure to appeal the decision. By making an appeal, you can potentially get a better outcome for your claim.
Veterans Disability Lawyers
At Berry Law, we are committed to fighting on behalf of Veterans. As a team founded by a Vietnam Veteran, it is our mission to ensure Veterans receive the disability benefits they’re entitled to. Our team includes a wide array of Veterans of multiple branches of the Military, including the Army, Navy, Air Force, and Marines. If you have been denied disability benefits or were given an incorrect effective date, we may be able to help. Contact Berry Law today to schedule a free case evaluation.
Established in 1965 by Vietnam War Veteran and attorney John Stevens Berry Sr., Berry Law Firm is a team of Veterans dedicated to defending, safeguarding, and fighting to protect the rights of Veterans. Over the decades, thousands of Veterans from across the country and all branches of the military have trusted our firm with their cases and, more importantly, their futures.
Established in 1965 by Vietnam War veteran and attorney John Stevens Berry Sr., Berry Law Firm is a team of veterans dedicated to defending, safeguarding, and fighting to protect the rights of veterans. Over the decades, thousands of veterans from across the country and all branches of the military have trusted our firm with their cases and, more importantly, their futures.