The effective date of a claim is the date a veteran first becomes entitled to benefits. When VA grants a veteran’s claim it begins paying the veteran his or her monthly benefit. VA also pays the veteran (in a lump sum) the retroactive benefits which represent the monthly payments VA owes from the effective date until the date VA granted the claim. Assigning the proper effective date is important because it affects the veteran’s retroactive payment. A veteran can appeal VA’s effective date decision.
The general rule for a new claim is that the effective date is the later of the date VA received the veteran’s claim or the date the veteran satisfied the criteria for entitlement to the benefit. This is true regardless of whether the claim is granted on the veteran’s first attempt or after several appeals, as long as the veteran continuously appealed VA’s decisions and kept the claim alive.
There are a few exceptions to this general rule. One is for claims filed within a year of the veteran’s discharge from active duty. If the veteran files a new claim within one year of the date of discharge, the effective date will be the date the veteran was discharged from active service. Another is for claims begun by filing an “intent to file.” The veteran can signal to VA his or her intent to file a claim by submitting this form or by beginning the claims process on ebenefits.
Requests to Increase a Current Rating
In this scenario the veteran is already service-connected for a disabling condition and submits (outside of the one-year period to appeal) a claim to increase the current evaluation. Generally, the effective date for an increase in a current rating is the date VA received the veteran’s claim. VA may also use the date the evidence shows the disability increased in severity. This date could be after or before (up to one year) the veteran files the claim for an increase. Thus, the evidence submitted in support of the request for increase is very important because it can mean an additional year of retroactive pay.
To receive this earlier effective date, the veteran must show the disabling condition increased to the next disability level set forth in the rating criteria. A marginal increase in the condition’s severity (one which does not satisfy the next higher criteria in the rating schedule) does not count when setting the effective date for a rating increase. This is true even if evidence later in time shows a more significant increase.
When submitting a claim for a rating increase, the veteran should inform VA when he or she believes the condition increased in severity. The veteran should also submit any evidence he or she has which shows the increase. Also, VA will often mistakenly assign an effective date based on the date of a VA medical exam which shows the increase in severity. The veteran should argue for an earlier effective date if the evidence shows the increase in severity occurred before the date of the VA exam (which is likely).
Total Disability Based On Individual Unemployability (TDIU)
Recall that a veteran may qualify for a total disability rating if their service-connected disabilities prevent them from working, even if their total numerical disability rating is less than 100%. Veterans generally become eligible for TDIU when they have a single service-connected disability rated at 60% or more or multiple service connected disabilities which combine to a 70% rating and where one is at least 40% disabling. This is only the general rule, and as we discuss in [the TDIU article], a veteran can qualify for a TDIU rating any time one or more of their service-connected disability[ies] prevents them from obtaining employment.
The effective date for a TDIU rating follows the general rule. It is effective on the date the evidence showed a veteran met the requirements for a TDIU rating. This is because a claim of entitlement to TDIU is not a separate claim. It is part and parcel of the veteran’s claim of entitlement to service connection for one or more disabilities. The TDIU aspect goes to the severity of the disability. Think of it this way: if a veteran has a service-connected mental health condition which is mildly symptomatic, the veteran may qualify for a 10 or 30 percent disability rating. If the condition is more severe, the veteran may qualify for a 50 or 70 percent rating. If the condition prevents the veteran from working, even if the veteran does not qualify for a 100 percent rating based on the symptoms listed in the rating schedule, the veteran can receive TDIU.
To recap, the effective date of a TDIU award is the date the evidence first showed the veteran’s service-connected disabilities prevented the veteran from working. VA often gets this wrong. One reason is that VA has a special form (found here) which veterans can submit to claim a TDIU rating. VA has a habit of assigning the effective date of TDIU to the date VA receives this form from the veteran. VA may refer to TDIU as if it is a separate claim – a “TDIU claim.” This is wrong. The Court of Appeals for Veterans Claims, in a case called Rice v. Shinseki, 22 Vet. App. 447 (2009), held that entitlement to TDIU is part and parcel of the underlying claim for benefits. It is not a separate claim.
Clear and Unmistakable Error (CUE) in a Prior Rating Decision
A veteran is entitled to an earlier effective date if he or she can show VA clearly and unmistakably erred in a prior rating decision, regardless of how long ago that decision issued and whether the veteran appealed or not. For example, if a veteran show a clear and unmistakable error in a January 1980 rating decision, even if the veteran did not point out this error to VA until January 2000, the veteran is entitled to that forty years of retroactive pay.
So what is a “clear and unmistakable error?” It’s basically an error where VA, based on the facts which were known and available at the time, either missed a fact or misapplied the law and got its decision wrong. For example, if VA denied a claim for headaches based on its finding that there is no current diagnosis but where the veteran’s medical records clearly show not only a diagnosis but also that there is a nexus between the current headache condition and the veteran’s service. To be successful on a CUE claim, the veteran must be able to point to evidence in the record available when the VA issued the decision in question which satisfies each element needed for service connection.
It’s also important to understand what is not a clear and unmistakable error. An argument that a later medical opinion (issued after the rating decision in question) weighs in favor of granting a claim is not a clear and unmistakable error. That new medical opinion was not in the record at the time of the decision in question. Also, if there is evidence which goes against the veteran’s claim, it will be very difficult to be successful on a CUE claim. An argument that VA weighed the evidence wrong is not a clear and unmistakable error.
Curious if VA got your effective date wrong?
If you think VA set the wrong effective date for your claim, please contact us. We will review your claim file to determine whether you may be entitled to an earlier effective date.