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An “effective date” is the date the VA uses as a start date for veteran’s disability benefits. The date is important because it often determines how much a Veteran will receive in accrued or retroactive benefits, also known as backpay. 

Please note, the discussions and examples identified here are for illustration, and the concepts are somewhat simplified. When a veteran hires an accredited VA Benefits Attorney, they should be looking for ways to get an earlier effective date for the claims in your claims file, and the discussions below are a snapshot of some of the things an accredited and experienced VA Benefits Attorney looks for.

Why is Effective Date Important?

Often, after a number of appeals, a veteran will finally get a condition service connected and even rated at the proper rating but will not notice that the effective date is incorrect. The veteran may have gone years with a rating that was too low because a condition was not properly service-connected meaning, they did not receive the proper monthly amount of disability pay. This can translate to thousands or tens of thousands of dollars in VA benefits that they should have been receiving all along.

The Basics

Generally speaking, when a veteran applies for disability benefits, the VA establishes the effective date as the date the VA received the application. Since it can take several months for the VA to grant the disability benefits, the VA will first pay all the benefits accrued since the date of application until the date decision, and then pay a monthly amount afterwards. 

To understand effective dates, it’s also important to understand when a Rating Decision becomes “final.” When the VA issues a Rating Decision, the veteran has a year to appeal it before it becomes “final.” Once a decision is “final,” the veteran can “reopen” the claim after that one-year period if they submit a “Supplemental Claim” with “new and relevant” evidence under the Appeals Modernization Act, or “AMA”. Here is an illustration:

October 8, 2018 – Veteran files for back pain.
February 20, 2019 – VA issues a Rating Decision, denying the claim.
February 18, 2020 – Veteran files a Supplemental Claim with new and relevant evidence.
May 20, 2020 – VA issues a Rating Decision, granting the back pain disability, with an effective date of October 8, 2018.

Now, if the veteran had waited just a few more days to submit the Supplemental Claim.:

October 8, 2018 – Veteran files for back pain.
February 20, 2019 – VA issues a Rating Decision, denying the claim.
February 28, 2020 – Veteran files a Supplemental Claim with new and relevant evidence.
June 1, 2020 – VA issues a Rating Decision, granting the back pain disability, with an effective date of February 28, 2020.
Because the veteran waited just a few more days to appeal with a Supplemental Claim, the original claim became “final,” and it had to be “reopened.” The veteran, therefore, lost out of potentially 16 months of backpay. 

For the most part, when a claim is “reopened” more than a year after the Rating Decision, the effective date becomes the date that the Supplemental Claim form was received. 

It is therefore so important not to wait to appeal if you are unhappy with your Rating Decision.

Recent Discharges

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One of the exceptions to the rule about the date the claim was received by the VA is when the claim is received within one year of separating from service. Claims received within one year of service are backdated to the date the veteran was discharged from service. This is one of many reasons why it makes sense to apply for disability benefits either right before or right after you get off active duty.

Appeals Under the Appeals Modernization Act

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Appealing an incorrect Rating Decision, either because the rating was too low or the VA denied service connection for the disability altogether, preserves the effective date of the claim if the Rating Decision is appealed within one year. Under the AMA, the original effective date is preserved if the veteran continuously pursues their claim, meaning that they continually appeal until the claim is granted. Here’s an example:

October 3, 2018 – Veteran files “Intent to File.”
January 5, 2019 – Veteran applies for arthritis in their knee.
May 23, 2019 – VA issues Rating Decision denying service connection.
August 6, 2019 – Veteran files Supplemental Claim with their personal physician’s medical opinion and additional evidence.
November 10, 2019 – VA issues Rating Decision, again denying service connection.
December 1, 2019 – Veteran files Higher-Level Review.
March 3, 2020 – VA issues Rating Decision, granting service connection at 10% disabling. 

In the above case, the Veteran should get an effective date all the way back to October 3, 2018, because they consistently appealed in a timely manner.

Pending Claims Doctrine

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The Pending Claims Doctrine can get complicated. In short, if the VA fails to adjudicate a claim, and the veteran goes back and applies for the same benefit later, the veteran is entitled to the earlier effective date. Here’s an example:

October 19, 2013 – Veteran files for arthritis in their knee, tinnitus, and PTSD.
March 3, 2014 – VA issues Rating Decision, granting service connection for arthritis in their knee and PTSD, but does not mention tinnitus.
January 9, 2017 – Veteran files another claim for tinnitus.
April 14, 2017 – VA grants service connection for tinnitus.

In this case, the effective date for tinnitus would be October 19, 2013. That amounts to nearly four years of backpay!

“New” Evidence Under 38 CFR § 3.156

This rule can be used a couple of different ways.

First, in a pending legacy claim, which are all claims with a Rating Decision that was issued prior to February 19, 2019, the VA should reevaluate the decision if the VA received new and material evidence within a year of that Rating Decision. If they do not reopen the Rating Decision and make a determination on whether the evidence was new and material, the claim effectively stays “pending.” 

This rule is significant since the holding in Lang v. Wilkie, which declared the records in the possession of the Veterans Health Administration are constructively in the possession of the Veterans Benefits Administration.

Another subsection of this rule deals with service department records. The VA’s Duty to Assist requires it to retrieve your service department records if you give them sufficient information to find them when you apply for benefits. Sometimes, the VA fails to retrieve them for one reason or another. Perhaps they failed to pull all the medical records, or if you had multiple periods of active duty, they only retrieved them from a single period of active duty. 

Total Disability Individual Unemployability, or TDIU

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It is important to understand that TDIU is not a claim unto itself, but rather, part of the VA’s duty to award the highest possible benefits supported by the facts. According to Rice v. Shinseki, the effective date for a Veteran’s TDIU award can be years prior to the submission of the VA Form 21-8940 if the VA received information that the Veteran was unemployed when an earlier appeal was pending. 

We have seen a number of cases where a Veteran has been awarded TDIU, but the VA has set an effective date that does not go back far enough. A thorough review of the claims file will often reveal sufficient facts that justify an earlier award of TDIU but were either ignored or misinterpreted by the VA.

Informal Claims

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Prior to March 24, 2015, the VA would accept a claim even if it was not on the official claim form. According to the holding in Shea v. Wilkie, a veteran could raise an informal claim by merely pointing out medical records if those medical records contained a reasonably ascertainable diagnosis of a disability.

The rule on informal claims has since changed, but if the VA failed to address an informal claim filed prior to March 24, 2015, it may give rise to a pending claim.

Contact Experienced Veterans Benefits Lawyer, Andrew P. Gross

As we have said, sometimes, veterans are happy to finally get an award after years of appealing, or they have applied once, are denied, and do not appeal at all. One of the most important things veteran can do to get the benefits they have earned is to apply for disability benefits early, and if they are unhappy with the decision, choose an appeal lane within the one year period.

As experienced VA Benefits attorneys, we strive to get veterans the earliest possible effective date so that they can get the VA benefits they are entitled to by law. Working to get the earliest possible effective date may be difficult. Contact a seasoned veterans advocacy lawyer at the Law Office of Andrew P. Gross for professional assistance.