How Do I Request Earlier Effective Date Due to VA Policy Change (Increase in Minimum Rating)?

[marathonjon]

The VA changed the minimum rating for painful motion of the shoulder from 10 to 20% on 23 May 2016. I only just found about it this year. I requested that they change my rating via a claim for an increase in benefits, which the VA granted, but they made the effective date the same as my file date (31 March 2020).

According to 38 CFR §3.114(a)(3): "If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.” Therefore, my effective date should be March 31, 2019. How do I request this earlier effective date? I searched these forums but can't find anything that's applicable.

[broncovet]

You file a Nod by filling out the applicable form.  You do need to chose:

a.  HLR  Use this only "if you are certain" that new evidence wont help you.  

b.  SCL  If you think "new evidence" may help you, use this, "provided that" you dont want to go "directly" to BVA.  

c.  BVA.  My recommendation.  Why:  

   Think about it.  If you have helpers working for you, do you want them to write someone a check for 100,000 dollars when you dont even know about it?  I think you would want to know if the guy cutting your grass decided you needed new landscaping, new paint, and new trees, costing 100,000.  

    The GS7's and even (higher level reviews, GS13's), "probably are not even authorized" to send you a decision which results in 250,000 retro.  Those are denied, then a judge says,  "You have to pay him 240,000 dollars".  

    That is why you want to get to the BVA as fast as you can.  Dont argue with the guy cutting your grass..or his supervisor..if you want to sell that homeowner a new sprikling system, new trees, new landscape costing 100,000.  Contact the owner..the other guys will listen to your "pleas" and always end the same way:  "Wow, you made a great case for an EED.  But I have to deny this, so you can talk to the owner (or judge).  

https://www.va.gov/vaforms/va/pdf/VA10182.pdf

    This said, there are a few HLR's and SCL's which have resulted in an EED.  (normally a small amount).  "Gee boss, you wanted me to cut the grass and that lawnmower is just dead.  So I got another one, it was $200.  I hope you dont mind.  

    So, maybe the homeowner isnt too happy with the lawnmower the grass guy bought, but, he knew that while he was gone 3 months the city would give him a ticket for not cutting grass, that would cost 250.00 So, ok, guy, I will pay for that lawn mower.  

[broncovet]

Of course, when you fill out the NOD form take your time and do a spectacular job.  GEt help if you need it.  Hadit members may help.

Allow an example, please.

   When I file a nod, I have the denial decision "in front of me".  I try to refute their reasons and bases.  In this example, "The VARO decision dated March 2020 listed the effective date as 31 March 2020.  In the reasons and bases, the VARO cited xy regulation as to why this date was selected.  However, this reasoning fails to consider this is a claim for increase, and 38 CFR §3.114(a)(3) applies.  

    Im not sure this applies to you, but, I generally like to refute the VARO "reasons and bases" for decision..showing that reasoning to be faulty.  

   Remember, in effective date claims there are 2 criteria, "the date of claim" or "facts found".  (its always the later of these 2.  But, there are exceptions and you pointed out a notable one.  

   But that is not "the only" exception the the effective date general rule.  Read these and see if any of these also apply.  As an example, if you applied "within a year of exit from service" your effective date should be the day following your exit from service.  This is huge.  

   If you are representing yourself (or a VSO), read this over at least 10 times: 

38 U.S. Code § 5110.Effective dates of awards

• U.S. Code
• Notes

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(a)

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, 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.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

 

end regulation quote.  

Again, if you are representing yourself, not reading or understanding the above regulation could cost you 100,000 or more.  The VA is counting on you not reading it.  Disappoint them.  I did!!!!!!  Yes, I have won six figure retro.  

 

[ShrekTheTank]

https://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf

same form.  You need to put in what the issue is as clearly as you can in the limited space they give.

[broncovet]

You are going to need to appeal the decision where benefits were awarded at the wrong effective date, "provided that" this decision was within one year.  After a year, its gonna be much tougher.  

Again, if its under one year (and it sounds like it is not), then file a nod.  If its been over a year, then you will need to request a revision of decision due to clear unmistakable error.  

There is no "stand alone" effective date claim.  

[marathonjon]

@broncovet The decision was effective 31 March 2020, so it's under a year. So how do I file a NOD under the AMA? The decision letter says I have two choices, Supplemental or HLR. I read somewhere that HLR can't be used to request an earlier effective date, so I guess it has to be Supplemental? But what's the new and relevant evidence? 

Thanks for your help! My VSO is useless.

[marathonjon]

@broncovet Thanks for the advice, makes perfect sense. I'm looking at a retro of only about $3600 (the difference between 80% and 90% for one year). Winning a six-figure retro must have been sweet (and taken forever)!