Earlier Effective Date

How does the VA determine when you should start receiving compensation? Unfortunately, that is a rather complicated answer!

The Short Answer

Contrary to popular belief, the effective date for a granted benefit is not the day you got out of the military. It’s not even the day you started seeing symptoms of your disability. Generally, the effective date is the date you filed your claim. Sometimes, the VA will use the date you submitted an “Intent to File.” If you start an application on eBenefits, that is considered an Intent to File. There is also a specific Intent to File form you can mail or fax. You have 1-year from the date you started the application to complete it. If you complete it within 1-year, the effective date of any granted benefits will go back to the date you started your application.

Because the VA takes several months…or years…to make a decision, lots of time can accrue from the date you filed your claim to the date the claim is finally granted. This often results in retroactive pay due to the Veteran. Sometimes, the backpay is several months worth of benefits; sometimes several years. When you hire us as your attorney, we do not charge a retainer or an hourly fee. Instead, we take 20% of any retroactive pay that is due. This percentage is the amount the VA deems reasonable. Some law firms charge up to 40% in hopes of arguing with the VA that a bigger fee was warranted. Our firm will never charge more than the reasonable percentage.

Case Example

Our client suffered from an incident involving Military Sexual Trauma (MST) and was diagnosed with PTSD in-service. The Veteran was actively seeking mental health care while on active duty, but was caught using marijuana and charged with a one-time drug offense. The Army administratively discharged the Veteran with an Other than Honorable discharge (OTH) due to the one-time drug offense in February 2013. The Veteran was enlisted from 2007 to 2013.

The Veteran applied for VA disability compensation for PTSD in January 2014. The VA denied the Veteran’s claim for PTSD because his OTH discharge barred him from receiving any VA benefits.

That’s when the Veteran came to us for help.

We helped the Veteran apply for a discharge upgrade through the Army Discharge Review Board (DRB) in October 2014 at no charge.  We also appealed the VA’s decision denying his PTSD claim within the one-year appeal period.

The VA denied his claim once again in September 2015 indicating that his less than honorable discharge status barred him from benefits. Meanwhile, his application for a discharge upgrade was still pending.

In October 2015, the Veteran received a discharge upgrade from the Army DRB, General Under Honorable, based on the fact he suffered from a mental health condition at the time of discharge. The Army should have considered that fact before giving him an OTH. He was now eligible for VA disability compensation.

That same month, the Veteran once again appealed his PTSD denial. The VA finally  granted his claim, but gave him an effective date of October 2015- the date of the Veteran’s most recent appeal. However, THIS WAS NOT THE CORRECT DATE!

The effective date should have been calculated from the date he was discharged. The effective date was preserved from his date of discharge because he applied for disability compensation within one-year of his discharge AND we kept the claim open by appealing it within the one-year appeal period.

Had he left his effective date as is, he would’ve only received 5 months worth of retroactive pay. Because he hired us, we were able to get him an earlier effective date back to the date he was discharged from the Army, totaling 2 years and 8 months. This amounted to $43,617.00 in backpay for the client.

The Long Answer
The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(a).  Further, unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).
The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.”  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155.
To complicate things even further, there were different rules that applied prior to March 2015. It is our job to determine how these specific rules and regulations apply to your case. Even more, there are special rules that indicate when it is proper to be awarded an earlier effective date based upon specific circumstances surrounding the procedural aspects of a case. One example is if service records were left out of the evidence considered for your claim. Without all the military records in your file, your claim remains, in a sense, pending.
We use our legal knowledge to determine if the VA followed their overly bureaucratic, tedious processes. Often times, they don’t! And that’s good news for the Veteran as it might mean they are entitled to retroactive pay. If you think you deserve  an earlier effective date, reach out! You can fill out the intake form on the right of the page, or give us a call at 720-388-8584.