Earlier Effective Dates
Earlier Effective Dates for Reopened Veteran Claims
Find The Legal Help You Deserve
When the VA grants a benefit, the veteran will be granted the amount of the benefit owed since the “effective date” of the claim. Generally, the effective date is the date the VA received the claim, or the date that entitlement to the benefit arose, whichever is later. For reopened claims, generally the effective date is the date the VA received the reopened claim, or the date that entitlement to the benefit arose, whichever is later.
Sometimes, a veteran may get a positive rating from the VA but feel that the effective date is improper. There are several arguments that allow for an earlier effective date for the veteran’s claim, thus increasing the amount of monetary benefit they receive.
Under Nehmer, the effective date for a newly granted claim for service connection due to Agent Orange may go back to the original filing date of the claim. Particularly for disabilities that were first diagnosed in the 1980s and 1990s, and granted recently the effective date can potentially go back decades.
When a veteran is successful at proving clear and unmistakable error in a VA decision, that original decision is modified and the new award has the effective date which would have been in effect had the VA made the original decision correctly.
Change in Law
Sometimes, there will be a change in the governing law while a veteran’s claim is pending. This can occur either with the issuance of new regulations, or the enactment of new statutory law by Congress. When this occurs, the VA generally applies to the pending claim whichever version of the law is more beneficial to the veteran’s claim. When the law in existence prior to the change is more favorable to the veteran than the law after the change, then the change in law doesn’t affect the veteran’s effective date. However, when the law after the change is more favorable to the veteran, this is considered a “liberalizing” change in law. When a veteran was awarded benefits as a result of the favorable change in law, they cannot receive an effective date earlier than the effective date of the favorable statute or regulation (even if they filed the claim at an earlier date). Changes in law can have other various effects on the effective date of a veteran’s awarded benefit.
Increased Rating Claims
The effective date for an increased rating is the date of the claim, or the date of the increase if the claim was filed within one year of the increase.
When the VA fails to adjudicate a pending claim until much later than when the claim was filed, the veteran or his representative can make an argument that since the claim was left pending by the VA, the veteran should be granted the earliest possible effective date with regards to when the claim was originally filed.
New Service Records
At times, the VA may not have all of a veteran’s military service records before them when deciding a claim. If the VA denies a veteran’s claim, and then receives the veteran’s relevant service records which were not previously before it, they must reopen the claim and reevaluate it. If the VA then grants the veteran’s claim, then the effective date may be the date the VA first received the claim for service connection, even if it was originally denied. There are exceptions to this rule which depend on the type of records received and other factors.
If you are a veteran looking for more information on earlier effective dates, or if you’re looking to file another type of claim, Bluestein Attorneys is here to help. For more information or to request your FREE consultation, give Bluestein Attorneys a call at (803) 779-7599 or contact us online at any time.