A clear and unmistakable error (“CUE”) is a rare type of error made by VA that could potentially result in an earlier effective date for benefits. CUEs are a way for a veteran to challenge a final VA decision, meaning a decision that the veteran did not appeal within the proper appeal period. New Military Records
Retroactive benefits are the monies VA owes to a veteran for the time that has elapsed from the veteran's effective date to the time they are granted benefits. For example, an award with an effective date one year earlier would entitle the veteran to one year of retroactive benefits.
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AnswerHow to get an earlier effective date in a VA claim?
The effective date is a crucial part of any award of VA disability benefits. As part of an award of benefits, VA establishes an “ effective date ” of the award, which directly corresponds with how much compensation they will receive. Securing the earliest possible effective date is a crucial part of any claim, as establishing an earlier effective date may entitle the veteran to more …
When does a veteran’s appeal become effective?
Sep 26, 2016 · Legal Search Tip: If you are searching Veterans Court and BVA Decisions on the issue of “Effective Date” determinations, the BVA and the Court sometimes refer to effective date appeals as one type of “Downstream Issue”. It’s an archaic term, and one that I try to use as little as possible – far too often, the BVA refuses to adjudicate Impairment Ratings and Effective …
How long is the appeal period for a VA disability claim?
Dec 27, 2021 · When this type of record is found, it can potentially mean an effective date years or decades earlier than the recent decision. Clear And Unmistakable Error (CUE) Claims. Another special rule applies to claims alleging clear and unmistakable error (CUE). If the VA grants a claim challenging a previous final RO or BVA decision based on CUE, the effective date is the date …
What happens if the effective date is wrong on a VA award?
Jun 08, 2021 · Effective Dates and Creation of Evidence. Court rulings have sided with Veterans regarding effective dates for claims. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) found that the date evidence was submitted or the date of the creation of evidence does not determine the effective date of a disability. It was determined that the effective date shall be set to the date …
What is a claim effective date?
Generally speaking, the effective date will be the date the VA received the claim or the date that entitlement arose, whichever is later. Additionally, if a claim is filed within a year of the Veteran's discharge, the effective date would be the day after discharge.Mar 12, 2021
How do I find my VA effective date?
In most cases, the effective date is based on when the Department of Veterans Affairs (VA) received the application for benefits. For instance, if a veteran applied for veterans disability on January 13, 2017, and VA received the application on January 18, 2017, the 18th is the effective date.
Does VA back pay to effective date?
The VA calculates VA disability back pay based on your disability effective date, not on your application or approval date. You may also receive back pay if the VA approves your previously denied claim after a review or an appeal.
What are the effective dates for TDIU Awards?
The effective date of a TDIU rating is the date when the veteran became unemployable as a result of the service-connected disability. This is determined by two factors: (1) the date the current underlying claim(s) was filed, and (2) the date the veteran became unemployable due to the service-connected disability.Apr 30, 2019
How can I get an earlier date from VA?
13:0319:51How to Get an Earlier Effective Date for VA Disability Claims - YouTubeYouTubeStart of suggested clipEnd of suggested clipSure so this is another way to get an earlier effective date from what your technical claim is so soMoreSure so this is another way to get an earlier effective date from what your technical claim is so so long as you file your claim uh within a year being discharged va if they grant it they will grant
How long does VA retro pay take?
within 15 daysVA maintains that veterans should receive VA back pay within 15 days of the decision granting the retroactive benefits either through direct deposit or a check. However, it is not uncommon for VA to take several months to issue back pay and retroactive benefits.Oct 9, 2019
What is the VA 5 year rule?
The five-year rule states that the VA can't reduce a veteran's disability that's been in place for five years, unless the condition improved overtime on a sustained basis. The veteran will likely need to present medical evidence to prove the material improvement of their condition.Apr 7, 2022
What is the maximum SSDI back pay?
SSD benefits can potentially be received back to the year prior to the application date. This means you will receive a maximum of 12 months of back pay benefits.
Can I get a lump sum for my VA disability?
Servicemembers rated 30 percent disabled or more qualify for monthly disability retirement. But those rated 10 percent or 20 percent by DOD can only get a lump-sum disability severance. Most DOD disabled retirees apply for a VA rating after leaving service. That can result in a higher rating and better benefits.Nov 2, 2006
What does VA disability effective date mean?
If we get a claim within one year of the date of a Veteran's death, the effective date is the first day of the month in which the Veteran died. If we get a claim more than one year after a Veteran suffered an injury, their injury got worse, or they died, the effective date is the date we get the claim.May 1, 2020
Is VA Unemployability retroactive?
Veterans who are eligible for Individual Unemployability Benefits often receive a lump-sum check from the Veterans Administration, known as back pay or retro pay. Too often, veterans only receive their VA Individual Unemployability back pay to the date they appealed or some other date.Oct 27, 2016
What benefits come with TDIU?
What benefits for newly awarded 100% TDIU?CHAMPVA Health Insurance.DEA.Commisary and Exchange and other on-base privileges . You'll also be offered life insurance.
What Is An Effective Date?
The Effective Date is a really important part of a Veterans Disability Compensation Claim.I describe them as the 4th Pillar of a VA Claim.Effective...
If There’S Still Time to Appeal An Incorrect Effective Date, Try Option #1.
If the decision assigning the effective date has not become final, the Veteran – or Surviving Spouse – may file a direct appeal challenging the Eff...
If Your Effective Date Decision Is Final, Try Option #2.
If the decision assigning the effective date has become final, the only means by which a Veteran – or their surviving spouse – may be able to obtai...
The Cue Claim For An Earlier Effective Date Can Be Dangerous!
CUE Claims are some of the hardest claims that a Veteran can make.I’m NOT saying that you should not file a CUE Claim – they are another Arrow in t...
What is the effective date for VA disability?
The effective date is when you will start receiving your VA disability compensation. The rule in general for effective dates is that the effective date of a claim is the date the claim was filed. However, there are many situations in which this general rule does not apply, entitling you to an earlier effective date.
How long does it take for a VA claim to be effective?
If the VA grants presumptive service connection for your condition, and they receive your claim within one year of discharge, the effective date is the same as the date that the illness or injury first occurred. However, if the VA receives your claim more than a year after discharge, the effective date remains either when they received your claim ...
What is 38 CFR 3.156?
38 CFR 3.156 is the federal regulation relating to new and material evidence. Section (c) is far more specific than the overarching regulation and deals specifically with service department records. This exception deals with newly discovered service department records or records that existed at the time the VA made its decision and simply did not associate with the claim. If the claim was denied previously, but then granted on records which have recently been discovered, the regulation requires that the VA consider an effective date back to the time of the previously denied claim. In particular it states:
What is a CUE in VA benefits?
If the VA grants a claim challenging a previous final RO or BVA decision based on CUE, the effective date is the date that the VA received the previously denied claim. This means there is potential for many years of retroactive benefits for these types of claims, but it is important to note that these claims are very difficult to win.
What are the Nehmer rules?
Nehmer rules are not quite the same as the other instances discussed in this post because Nehmer applies specifically to Agent Orange cases. Nehmer came about due to a lawsuit between Beverly Nehmer and the VA in the 1980s and was codified in 38 CFR 3.816 Nehmer states that when the VA adds a new disease to the presumptive list for Agent Orange, the VA adjudicators are required to automatically review cases of Vietnam veterans who were previously denied service connection or dependent indemnity compensation (DIC) benefits for the newly added disease. When the VA is re-adjudicating the claims based on the newly codified presumption, it is also required to determine the effective date of the benefits as the date of receipt of the claim.
Do you have to prove direct service to the VA?
There are certain conditions that the VA presumes are connected to military service. This means that you don’t need to prove direct service connection. For example, this is the case with Vietnam veterans and illnesses connected to agent orange exposure.
What happens if you have a claim denied?
If you have a claim denied, and the law changes in such a way that your claim is now granted, then you may be entitled to an earlier effective date base on the “liberalizing rule effective date rule”.
What are the 4 pillars of VA?
In any VA Claim, there are 4 pillars. The first 2 are known as “upstream” issues – though this phrase was coined by a CAVC Judge (I believe), it refers to the elements of a VA claim pertaining to eligibility and service connection. The second 2 pillars are called “downstream” issues – they are the 2 issues that determine how much you get paid by ...
Direct service connection
The effective date for a disability that was caused—or made worse—by military service is whichever of these comes later:
Presumptive service connection
In most cases, if we believe your disability is related to your military service (known as a presumptive service connection)—and we get your claim within one year of your separation from active service—then the effective date is the date you first got your illness or injury.
Reopened claims
The effective date for a reopened claim is the date we get the claim to reopen, or the date you first got your illness or injury, whichever is later.
Liberalizing law change
If there’s a change in law or VA regulation that allows us to pay disability compensation (monthly payments), the effective date may be assigned in any of these ways:
Dependency and Indemnity Compensation (DIC)
For claims based on a Veteran’s death in service, the effective date is the first day of the month in which the Veteran died, or was presumed to have died. This is true only if we get the claim within one year of the date of the report of the Veteran’s actual or presumed death. Otherwise, the effective date is the date we get the claim.
Error in a previous decision
If we find a clear and unmistakable error in a prior decision, the effective date of the new decision will be the date from which benefits would’ve been paid if there hadn’t been an error in the prior decision.
Difference of opinion
A decision that’s based on a difference of opinion will have an effective date of the original decision, had it been favorable.
What is the effective date for VA disability?
What is an Effective Date? The effective date is the date which VA uses as a start date to pay the veteran disability benefits for their claim. The effective date essentially determines how much the veteran will be entitled to in retroactive benefits (i.e., benefits the Department of Veterans Affairs owes the veteran for ...
How long does it take for a VA claim to be effective?
If it receives your claim within one year of a “liberalizing law change,” it might be the date the law changed. If VA receives your claim more than one year after the change, your new effective date is the date VA received your claim.
How does VA determine an increased rating?
In determining an increased rating, VA may look at lay statements, medical evidence, and Compensation and Pension exams to aid in deciding whether ...
What is staged rating?
Staged ratings refer to the process when VA rates a veteran’s conditions multiple times during the appeal period and increases or decreases the rating based on severity.
Earlier Effective Date Argument #1
Once you have the earliest effective date allowed by the “general rule” for effective dates, you are going to want to see if 38 CFR 3.156(c) applies. This regulation states, basically, that if a reopened claim for service connection is granted based on new military or military medical recordsthat were not in your original claims fil…
Earlier Effective Date Argument #2
- Next, you are going to want to see if there are any previous claims that are open and pending. You have a prior claim for the same condition, or that reasonably encompassed the condition you just won, and it was never finally adjudicated by the VA, then it is still open and pending. There are many ways that a claim could still be “open and pending”. Here are 2 of the most common scen…
Earlier Effective Date Argument #3
- So you could not find any open and pending claims for service connection using the regulations. Now what you want to do is look for old claims that reasonably encompassed the condition that you just won service connection for, and see if you can make an argument that your current claim was reasonably encompassed in the prior claim. This is a tricky argument…mostly because the …
Earlier Effective Date Argument #4.
- Was the claim that you just won a claim for increased rating? If so, remember that increased rating claims can have effective dates up to 1 year prior to the actual claim for increased rating, if you can prove that the condition worsened in that preceding year. EXAMPLE: In September 2015, you filed a claim to increase your prostate cancer rating from 40% to 60% because your “voiding…
Earlier Effective Date Argument #5.
- If you have a claim denied, and the law changes in such a way that your claim is now granted, then you may be entitled to an earlier effective date base on the “liberalizing rule effective date rule”. Yes, it’s a mouthful, and there are a lot of “ifs, ands, and buts” that control this one….so many that there will be a future post on this topic to go into more detail. Sometimes it depends on what th…
Earlier Effective Date Argument #6
- At this point, our arguments are getting harder and harder. We are about to dip our toes in to the waters of the CUE claim. The first thing I want you to do is to make a timeline for the particular condition that you want an earlier effective date for. Write down, in chronological order, the date of claim and the date of the VA Ratings decision for each claim that relates to the medical conditio…
Earlier Effective Date Argument #8
- There is a relatively unused section of the US Code found at 38 USC 503. This is where Congress has given the VA Secretary authority to award equitable relief – legal mumbo jumbo for “making a wrong, right, even if the law doesn’t allow it to happen”. I believe that VA Secretary McDonaldis the only VA Secretary I know to use this power, and he used it to grant new exams and new ratings d…
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