, one of the most complicated aspects of VA law are the rules surrounding setting the effective date for an award of benefits. Because of this, and the fact that the VA often does not set the correct effective date, it is important to analyze any decision you get from the VA to determine whether the effective day is correct. Today we will discuss a particular rule about effective dates which has the potential to result in substantial retroactive benefits.
In order to illustrate how this rule works in practice, we will describe the case of a hypothetical veteran, Vet. Vet filed an initial claim for service connection for anxiety the month after he left service in 1989. He never heard anything from the VA about this claim and never followed up because he was having difficulty adjusting to civilian life and did not want to deal with the VA. Many years later, Vet is still having anxiety issues and is eventually diagnosed with PTSD. He files a claim for PTSD in August 2014. In July 2015, the VA issues a rating decision and grants him service connection for PTSD and sets the effective date as the date of his claim in August 2014. Is this correct?
The key here is whether Vet’s claim in 1989 was adjudicated or properly finalized and whether or not the anxiety that Vet claimed in 1989 is the same mental health condition that was eventually diagnosed as PTSD. In regards to the first question, a claim remains in a pending status when the VA has failed to notify a claimant of the denial of the claim, mail a copy of a Board decision, provide notice of appellate rights, or issue a Statement of the Case. In Vet’s case, he never received acknowledgement of his claim for anxiety in 1989 nor did he receive any correspondence from the VA denying his claim. Therefore, his claim remained pending until it was finally adjudicated in 2015.
Which bring us to the second question – is the PTSD that the veteran was eventually diagnosed with a continuation of the anxiety that he claimed in 1989? In order to get the effective date moved back to 1989, Vet will have to show that his anxiety after leaving service was really PTSD. The best evidence in this case would be an independent medical opinion by a psychiatrist or psychologist who can look at Vet’s mental health history and provide an opinion that the anxiety he suffered from in 1989 was in fact PTSD. If Vet is able to successfully argue this, he should be able to receive retroactive benefits back to the date after he left service in 1989.
Note that this special effective date rule gets more complicated if there are intervening claims between the initial claim that was never adjudicated and the later claim where the veteran was eventually awarded benefits. This is due to something known as the “implicit denial rule,” which means that if the VA denies benefits for an intervening claim, it typically cuts off the ability to get benefits all the way back to the initial unadjudicated claim. The question in such instance is whether the intervening claim could be considered a claim for the same benefit that was not adjudicated in the initial claim. In Vet’s case, if he had filed an intervening claim for a mental health condition in 2005, and that claim was denied, it is likely that he would be unable to get benefits back to the initial 1989 claim when he is eventually awarded benefits in 2015 due to the implicit denial rule. But if he filed a claim for a back condition in 2005, he should be able to argue that a denial of that claim is not an implicit denial of his pending anxiety claim from 1989.
As you can see, the area of law surrounding effective dates for VA benefits is dense and often frustrating for veterans. But there is also potential for substantial retroactive benefits if one of the special rules for effective dates applies, such as the rule regarding unadjudicated claims we discussed today. Therefore, it is always important to think about whether there is any way that you can argue that the VA set the wrong effective date for your claim so you receive all of the benefits to which you are entitled.
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broncovet
Source: http://www.hillandponton.com/special-effective-date-rules-for-va-benefits/
, one of the most complicated aspects of VA law are the rules surrounding setting the effective date for an award of benefits. Because of this, and the fact that the VA often does not set the correct effective date, it is important to analyze any decision you get from the VA to determine whether the effective day is correct. Today we will discuss a particular rule about effective dates which has the potential to result in substantial retroactive benefits.
In order to illustrate how this rule works in practice, we will describe the case of a hypothetical veteran, Vet. Vet filed an initial claim for service connection for anxiety the month after he left service in 1989. He never heard anything from the VA about this claim and never followed up because he was having difficulty adjusting to civilian life and did not want to deal with the VA. Many years later, Vet is still having anxiety issues and is eventually diagnosed with PTSD. He files a claim for PTSD in August 2014. In July 2015, the VA issues a rating decision and grants him service connection for PTSD and sets the effective date as the date of his claim in August 2014. Is this correct?
The key here is whether Vet’s claim in 1989 was adjudicated or properly finalized and whether or not the anxiety that Vet claimed in 1989 is the same mental health condition that was eventually diagnosed as PTSD. In regards to the first question, a claim remains in a pending status when the VA has failed to notify a claimant of the denial of the claim, mail a copy of a Board decision, provide notice of appellate rights, or issue a Statement of the Case. In Vet’s case, he never received acknowledgement of his claim for anxiety in 1989 nor did he receive any correspondence from the VA denying his claim. Therefore, his claim remained pending until it was finally adjudicated in 2015.
Which bring us to the second question – is the PTSD that the veteran was eventually diagnosed with a continuation of the anxiety that he claimed in 1989? In order to get the effective date moved back to 1989, Vet will have to show that his anxiety after leaving service was really PTSD. The best evidence in this case would be an independent medical opinion by a psychiatrist or psychologist who can look at Vet’s mental health history and provide an opinion that the anxiety he suffered from in 1989 was in fact PTSD. If Vet is able to successfully argue this, he should be able to receive retroactive benefits back to the date after he left service in 1989.
Note that this special effective date rule gets more complicated if there are intervening claims between the initial claim that was never adjudicated and the later claim where the veteran was eventually awarded benefits. This is due to something known as the “implicit denial rule,” which means that if the VA denies benefits for an intervening claim, it typically cuts off the ability to get benefits all the way back to the initial unadjudicated claim. The question in such instance is whether the intervening claim could be considered a claim for the same benefit that was not adjudicated in the initial claim. In Vet’s case, if he had filed an intervening claim for a mental health condition in 2005, and that claim was denied, it is likely that he would be unable to get benefits back to the initial 1989 claim when he is eventually awarded benefits in 2015 due to the implicit denial rule. But if he filed a claim for a back condition in 2005, he should be able to argue that a denial of that claim is not an implicit denial of his pending anxiety claim from 1989.
As you can see, the area of law surrounding effective dates for VA benefits is dense and often frustrating for veterans. But there is also potential for substantial retroactive benefits if one of the special rules for effective dates applies, such as the rule regarding unadjudicated claims we discussed today. Therefore, it is always important to think about whether there is any way that you can argue that the VA set the wrong effective date for your claim so you receive all of the benefits to which you are entitled.
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broncovet
Source: http://www.hillandponton.com/special-effective-date-rules-for-va-benefits/ , one of the most complicated aspects of VA law are the rules surrounding setting the effective date for an award
Berta
Geez, that response from VA is a real hoot. I have never seen anything like that one yet....I guess they are trying to save paper... http://www.va.gov/vetapp13/Files2/1312670.txt This above case mig
Berta
I guess I am still having problems here as I could not bump it up---it is one of our most important topics, but here is the link: PTSD diagnosis by VAMH provider is needed. IMO diagnoses wont be acce
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