Many Veterans logically believe that upon award, their date of entitlement should go back to the date that the problem first arose. Unfortunately, the applicable VA law on this point isn’t as favorable to the Veteran as one would hope. While there are many exceptions, generally the effective date is the date the VA receives the claim, or the date that entitlement arose, whichever is later. 38 U.S.C. 5110a. It is that whichever is later language that prevents back payment going back to the date the problem first arose. Having a skilled veterans attorney is very useful on this point though because there are many exceptions to this general rule.
Reopened Claims (Supplemental Claims)
Prior to the Appeals Modernization Act, a previously denied claim that was not timely appealed could be reopened with new and material evidence. Under the newer appeal system (AMA) a supplemental claim must be filed based on new and relevant evidence. The effective date is the date the VA receives the reopened/supplemental claim (as opposed to the original claim) or the date that entitlement to the benefit arose, whichever is later. Date entitlement arose is the initial date on which it appears the claimant met the criteria for entitlement to the benefit based on the evidence included in the record when VA approved the claim. It is usually the date the claim was first submitted.
Many times, the date entitlement arose is the date the vet was discharged from service, but other times could be long after discharge. Note for PTSD the date of entitlement is often the date that the Vet was diagnosed with PTSD although it could be earlier if the diagnosis states that he/she first started suffering earlier. There are a variety of ways to receive an effective date based on the filing date of the original claim (that was not timely appealed), and therefore years of past due benefits, based on a successful filing of a clear and unmistakable error or motion to revise a final decision. Though these aren’t easy claims to win we discuss such claims here. The law is especially favorable to claimants who apply for benefits within one year of discharge since if this was done the entitlement date is the day following the day of discharge. Unfortunately, many claimants don’t experience their service-related problems so soon after discharge since often there is a long latency period.
Informal Claims
There was a time, before March 24, 2015, to be exact where claims did not have to be formally submitted to VA on the standard application form. There are potential live claims that could result in a much earlier date, where a communication, so long as it is written, could constitute a claim, as opposed to a formal written claim form could qualify as a claim. So long as the communication includes some kind of intent to apply for one or more benefits and it must identify the benefit that the veteran is hoping to be service connected for. An earlier date could be assigned for any impairment where the claims file contains written communications that the veteran had sought service connection for that benefit at an earlier point in time. The VA is required to search the file to find these communications although they would often most likely fail to do this. These communications are supposed to be liberally construed so whether the communication qualifies as an informal claim would likely be fact dependent. The communication also doesn’t necessarily have to be from the veteran as it could also originate from the veteran’s representative or a member of congress. A “report of contact” form could also constitute an informal claim; however the key components are that there was an intent to apply for benefits, and that the benefit was at least roughly identified. Once this was done, at least prior to this 2015 date, the VA has a duty to maximize and develop the claim to its optimum.
In terms of this rough identification, whether the claim or informal, the problem only needs to be vaguely identified. For example, many veterans claim PTSD only to be diagnosed for anxiety or depression and although PTSD was initially mentioned the VA would also need to consider any other mental impairment for service connection under the circumstances. The Veteran could additionally just indicate that a non-specific medical issue should be compensable. This often comes up when its unknown what specific diagnosis is causing problems other than specific symptoms that could be definitively identified later. An example would be to be claim “stomach pains” that is later determined to be irritable bowel syndrome. Onecould identify symptoms or could even claim compensation benefits based on the attachment of medical records that specifically record the problems the veteran experiences.
Relatedly, are claims that can trigger an earlier date are ones that are reasonably raised by the record. This is a part of the VA’s duty to develop a claim to its optimum so that all potential claims that are raised by the evidence are developed. This most often occurs where one claim is brought formally but the evidence clearly shows that some related disability is service related even if it was never formally claimed. The issue that was never formally claimed must logically relate to the one that was formally claimed.Most often this would be found where two closely related problems like low back pain and radiculopathy down the legs or diabetes and neuropathy in the hands. There could be many other examples like this as well.
Other pre 2015 regulations provided for earlier effective dates based on the existence of VA examination reports and/or VA treatment under 38 C.F.R. 3.157. Such documents would qualify as an informal increase claim if the records indicated the disability had worsened. Such exams would include a treatment note or exam that indicated the date of exam, and was conducted at the VA or during military service, or a non-VA facility for the disability was based on VA payment, a private doctor indicated an increase in severity had occurred, or an increase in severity can be shown based on other government or private institution records.
Claims filed during the Covid 19 Pandemic
Exceptions were created during the pandemic that liberalized the date assignment for basically any kind of correspondence to VA such as formal claims, medical evidence, or other kinds of evidence. If its postmarked it will be received as of the date of that postmark, however if there is none then it will be considered no later than February 29, 2020. 85 Fed Reg 21937.
Intent to File
A very easy strategy that is advisable whenever you think you have compensation claims but not sure on the exact claims is to file an “intent to file” VA form 21-0966, which is a very simple one-page form. So long as the formal application is filed within one year of the intent to file the effective date that is ultimately assigned will be the date of the intent to file. The only potential pitfall is when a second intent to file is filed within that one-year period before the formal application is filed the second intent to file will have no effect. The formal filing of the application will need to be filed within one year of the intent to file for it to have any impact.
New and Material Evidence
Prior to the implementation of the newest appeal system, AMA, in February 2019 veterans were able to in effect appeal a claim based on submission of new and material evidence, even if a formal appeal was not submitted. 38 C.F.R. 3.156b. So long as this evidence is new and material the effective date would be the date of the original claim even though a formal appeal was never submitted. The claim would remain pending for as long as it takes to decide whether this evidence is new and material even if a claim is submitted much later in time.
Another important exception to provide for an earlier effective date is when service treatment records provide a basis for award of benefits, but those records previously existed when the claim was first adjudicated but weren’t associated with the file. The regulation under 3.156(c) require the VA to redecide the initial claim and the record could provide for an effective date of the original claim if that record is a relevant service department record, which encompasses a fairly broad definition.
TDIU and Effective Date
Total disability due to individual unemployability is a much different type of claim as compared to others since a formally submitted claim form does not necessarily trigger it. Though often this form, the VA form 21-8940 should be submitted so that the VA begins work or processing of this claim. Though the date of submission of this form often would have nothing to do of the effective date for unemployability. This is because unemployability is not a free-standing claim like say a claim for service connection of a back problem. Unemployability is raised whenever the evidence raises the issue such as a medical record that mentions the veteran is unemployed. The effective date would often be based on the date the record first raises the veteran was unemployable or the date of a claim for service connection or increased rating.
