BULLETIN October 2015
Reviewing Cases for Proper Effective Dates
More and more we are seeing decisions coming out of the VA in which there is an inappropriate assignment of an effective date for the awarded disability. This bulletin will help you to understand proper application of 38 U.S.C. § 5110(a)so as to better prepare you for effective representation of your clients. Effective dates are key in order to calculate the retroactive pay. Getting a higher percentage for your client is only one step, the second is ensuring the proper effective date is applied.
The applicable statute, 38 U.S.C. § 5110(a), states:[T]he 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.
The applicable regulation 38 C.F.R. § 3.400(b)(2), states that the effective date is the date of application or the date entitlement to such compensation arose,whichever is later. (paraphrased)
In McGrath v. Gober, 14 Vet.App. 28 (2000), the Veterans Court explained how effective dates should be assigned for claims that are pending and not finally adjudicated. By definition, a claim is not finally adjudicated until the appeal period has run, (and the claimant has not filed a timely appeal via a Notice of Disagreement or Form 9) or the claim has been denied on appellate review. 38 C.F.R. § 3.160(d).
The McGrath court instructed that effective dates are determined by the later of two dates: (1) the filing date of the pending claim, and (2) If claim for serviceconnection, the date when disability manifested or arose. If claim is for increased rating, the date when the disability increased. Under #2, the ratings examiner or DRO must base his/her finding on the medical evidence. Id. at 35-36.
Importantly, the McGrath court made clear that, in assigning an effective, the date of the submission or preparation of the medical evidence is irrelevant. Id. at35 (“when an original claim for benefits is pending, as the Board found here, the date on which the evidence is submitted is irrelevant”). Rather, the relevant date is the date the disability arose or increased, as opined in the medical report or record.
Example: A veteran is seeking the earliest effective date for an increased rating of 60% for service-connected back disability in connection with a pending claim filed in August 12, 2009. In a VA examination report dated February 2, 2015,the physician indicated that in his opinion the level of the veteran’s back disability increased to 60% by May 13, 2005. Therefore, according to the McGrath case,the date of the report, (here February 2, 2015), is irrelevant. The relevant dates are: 1) the filing of the claim, August 12, 2009, and 2) the date the back disability increased to 60%, May 13, 2005, as stated by the VA examiner in his report. The proper effective date is the later of the two: August 12, 2009.
When reviewing a decision from your client, please be sure to review for proper effective date and submit and NOD citing the McGrath case when appropriate. It’s also helpful to specifically outline in the NOD what the effective date should be. In the above example, we would simply indicate on the NOD the following:Veteran’s claim was filed on August 12, 2009. The medical report indicates that increased disability rose to the 60% level as of May 13, 2005. The effective date of the 60% should be August 12, 2009. Under the McGrath case, the date of the physician’s report is not the relevant date. McGrath v. Gober, 14 Vet.App. 28 (2000) Therefore, please correct the effective date of the 60% rating to be effective August 12, 2009.”
If you have any questions regarding this Bulletin, please feel free to contact our office.