Effective dates are important in determining the amount of backpay a Veteran will receive if their claim is granted. If a claim for service connection is denied and the Veteran does not appeal the denial, the claim is over and their effective date will be lost. However, the Veteran can always reopen their claim with new and relevant evidence. If the claim is granted, the effective date will be the date that they reopened the claim, not the date they first filed for the claim.
There are some exceptions to this rule. One exception concerns disabilities that are a result of service connection due to Agent Orange exposure. In many cases, the effective date of service connection for an Agent Orange-related disability will be the date the Veteran first filed for the claim, not the date they reopened the claim.
Recently the Board of Veterans’ Appeals (BVA) has denied Agent Orange earlier effective date claims if the disability the Veteran is claiming was on the Agent Orange presumptive list when he first made the claim.
The logic behind the Board’s decision is that the earlier effective date rule should only cover claims that were made before the specific disability the Veteran is claiming was put on the Agent Orange presumptive list. Thus, the earlier effective date rule would not apply for claims that were on the presumptive list at the time of the first claim.
As another caveat, the earlier effective date rule still applies to Blue Water Navy Veterans, as the text of the Blue Water Navy Vietnam Veterans Act of 2019 explicitly allows for it.
What happens when a Veteran is denied for secondary disabilities caused by Agent Orange? What happens if the Veteran did not file the secondary claim, but the record shows they had the disability when they filed the initial Agent Orange claim?
For cases where the Veteran filed the secondary claim at the same time as the Agent Orange claim, the Court of Appeals for Veterans Claims has held that the effective date for the secondary condition can be the same date of the first claim.
For cases where the Veteran did not file for the secondary condition when he filed his Agent Orange claim, the effective date for the secondary disability is less clear. VA law is very clear that a Veteran is not entitled to service connection if he does not file a compensation claim for the disability. On the other hand, the VA is supposed to consider all issues “reasonably raised” by the claim.
For example, let’s say a Veteran registers a claim for lower back pain. Then, at his VA examination, it is revealed that he has lower extremity radiculopathies caused by his back disability. The VA will almost always grant service connection for radiculopathies, assuming the Veteran is entitled to service connection for the back disability.
Even though the Veteran did not file a claim for radiculopathies, the examination shows that he has it and that it is caused by his back disability.
Concerning Agent Orange disabilities, let’s say that a Veteran filed a claim for diabetes and was denied service connection. The Veteran is later granted service connection for his diabetes due to Agent Orange exposure, and he is also granted service connection for a new claim of peripheral neuropathies secondary to diabetes.
The argument can be made that if the record showed he had diabetic peripheral neuropathies at the time he first filed for his diabetes claim, the effective date for his peripheral neuropathies should be the same date as his diabetes grant. If he had been granted service connection for his diabetes at the beginning, the VA would have recognized that his diabetes caused his neuropathies and would have granted him service connection at the same time.
This argument can still fail if the VA sticks to the hard and fast rule that the effective date of the disability is the date the Veteran filed for service connection, or the date the disability arose, whichever is later. As the Veteran did not file a neuropathy claim along with his first diabetes claim, the VA would find he is not entitled to the earlier effective date for his neuropathy claim even though he is entitled to the earlier effective date for his diabetes claim.
At Berry Law, we are dedicated to helping Veterans in their fight for disability benefits. If you have been denied disability compensation, we can help you appeal. Our VA disability lawyers have helped thousands of fellow Veterans in their fight for disability benefits. Call our team today to schedule a free case evaluation and take the next step in getting your VA claim approved.
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