VA Claims, Why Should I Worry About The Effective Date

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[VeteranIssues] VA Claims, Why Should I Worry About The Effective

Date

> The Answerman: Why Should I Worry About The Effective Date?

>

> Dec 30, 2000

> E. Howell

> Stars and Stripes Veterans' Advocate

>

>

> Congratulations: Your disability is service-connected. The rating schedule

> says you have the best rating your symptoms will support. (The Schedule

for

> Rating Disabilities, Title 38, Code of Federal Regulations, Part 4, is

found

> at your local library or at www.access.gpo.gov/nara/cfr.)

>

> What about your rating's effective date?

>

> The general rule is that the effective date for an award of disability

> compensation is the " date of receipt of the claim [by the VA] or the date

> the entitlement arose, " whichever is later. You may ask, " Why should I

care?

> I got my award. "

>

> You should care because an early effective date can mean a substantial

> payoff in past-due benefits. It is not unusual for a claim to take several

> years to produce an award. Assume you filed a claim for disability

> compensation at the regional office (RO) on Jan. 2, 1991, five years after

> your discharge from active duty. Your claim is denied for lack of service

> connection. You appeal to the Board of Veterans Appeals (BVA) and submit

> more evidence, but the BVA remands it to the RO for further evaluation.

>

> The RO works on it, finds your disability service-connected and gives you

a

> rating of zero percent. You appeal to the BVA, but it's denied; so you

> appeal to the U.S. Court of Appeals for Veterans Claims. The court remands

> your claim to the BVA, and it sends it back to the RO. Sound familiar?

>

> On Dec. 1, 1997, after two more years of fighting, you get an award of 10

> percent with an effective date of Sept. 1, 1996. You appeal again.

>

> After another remand to the RO, you receive a favorable C & P ( " Compensation

> and Pension " ) exam from a VA doctor on July 4, 1998, and eight months

later

> the RO grants you a 50 percent rating with an effective date of July 4,

1998

> (the date of your C & P exam).

>

> Should you appeal this award? Yes! There are good arguments for earlier

> effective dates:

>

> Sept. 1, 1996, is a possibility because that was when you had the medical

> exam that resulted in your award of 10 percent.

>

> What about Jan. 2, 1991, the date you filed your claim? That's your best

> date, because when you filed your claim, you had good medical support for

> your disability.

>

> Are these details worth the aggravation of further appeals? Usually they

> are! You are receiving your 50 percent disability every month from 1998.

But

> you have a good argument for backdated payments of 50 percent from 1996,

and

> a reasonable argument for backdated payments going back to 1991.

>

> Some veterans won't appeal because they fear the VA may use it as an

excuse

> to reduce their benefits. That is a possibility if the VA orders a new

> medical examination, which they have a right to do. However, an appeal for

> an earlier effective date is an administrative matter and not an attempt

to

> raise your disability rating; and since this appeal comes within the

> one-year time limit for an appeal, it is unlikely to trigger another C & P

> exam.

>

> Therefore, go for it! The law provides for these past due payments and you

> are entitled to them.

>

> One more thing: Sometimes, if your award is at the top of the rating

> schedule for your disability, the VA may say: " The benefits granted

> represent a complete grant of benefits sought on appeal. Therefore, unless

> we hear to the contrary from you within 30 days, we will assume that you

are

> satisfied with our decision and do not wish to pursue your appeal

further. "

>

> The law says you have one year from the date of that notification to file

a

> notice of disagreement (see Title 38, Code of Federal Regulations, 3.109),

> and you still may have an appeal for the correct effective date. Don't be

> intimidated into abandoning your appeal just because the 30 days have

> expired.

>

> E. Howell, an attorney in Washington, D.C., served as a judge

advocate

> with the U.S. Air Force. After retiring as a colonel in 1991 he served for

7

> years as the first chief of the Article III Judges Division, Office of the

> United States Courts, in Washington.

>

>

>

> " Keep on, Keepin' on " , Support Veterans

> & Thanks.......Colonel Dan

> See my web sites at:

> http://www.angelfire.com/il2/VeteranIssues/

> and http://hometown.aol.com/dancolonel/VetsIssue.html

>

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