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.

[Carl the Engineer]

Did you get the $3600.00?

Asking for a friend,

Hamslice

Sending my claim in tomorrow, with one part same as yours, increase in rating for left shoulder painful movement rated currently at 10%,

[broncovet]

Im sorry, I did not see this question from August, 2020.  To appeal to the BVA you can find the directions, here.  Essentially, they suggest the 21-0958 form, which is available online to download and fill out.  (Be careful of companies that place ads there and want to charge you for it, you can just fill it out from the VA website)

https://www.bva.va.gov/docs/Pamphlets/How-Do-I-Appeal-Booklet--508Compliance.pdf

[marathonjon]

@broncovet, thanks. I have an attorney reviewing this and other issues. They've handled many BVA appeals.

[Berta]

You stated:

"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."

If you fell into the "1 year prior to date of receipt of such request " criteria, did your attorney consider filing a CUE, in addition to the NOD?

I will try to find a BVA case that might help on that. I see your point.

 

[Berta]

I am getting nothing at the BVA, but will try later- I am sure veterans have used this reguation in their appeals but it does not come up often.

This is a very interesting regulation and might apply to others out there:

38 CFR § 3.114 - Change of law or Department of Veterans Affairs issue.

• CFR

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§ 3.114 Change of law or Department of Veterans Affairs issue.

(a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, 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. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and supplemental claims as well as claims for increase.

(1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.

(2) If a claim is reviewed on the initiative of VA 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 administrative determination of entitlement.

(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.

(Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g))

(b) Discontinuance of benefits. Where the reduction or discontinuance of an award is in order because of a change in law or a Department of Veterans Affairs issue, or because of a change in interpretation of a law or Department of Veterans Affairs issue, the payee will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If additional evidence is not received within that period, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired.

(Authority: 38 U.S.C. 5112(b)(6))

[27 FR 11886, Dec. 1, 1962, as amended at 55 FR 13529, Apr. 11, 1990; 62 FR 17706, Apr. 11, 1997; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 168, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019]

 

https://www.law.cornell.edu/cfr/text/38/3.114

[marathonjon]

My attorney hasn't filed yet, so I don't know what they'll use. They're very good, so if they think there's a CUE, I'm sure they will file for one.

BTW, VA denied my HLR based on 38 CFR 3.114. They said it wasn't a "liberalizing issue" because there wasn't a regulation change. However, they did change 4.71a. Isn't 38 CFR considered a "regulation"?