Back pay or what the VA calls retroactive benefits is the lump sum payment for benefits which have been accruing since the filing of a granted claim. The retro benefits come in a lump sum – paid all at once — after the grant of benefits. All other benefits awarded in connection with the claim are referred to as future benefits, paid in monthly installments.
The amount of entitled back pay or retroactive benefits is determined by the so-called effective date, which is the later of two dates: 1) the date of the filing of the claim, or 2) the date when the disability manifests or increases. The first date is fairly simple to understand, the second is more complicated.
For most claims, the date of the claim determines the effective date. Take, for example, a claim to entitlement to service-connected back disability filed on January 1, 2010. The claim is denied by the regional office on February 1, 2012 and appealed, then later remanded by the Board of Veterans’ Appeals on March 1, 2015, and then ultimately granted by the regional office on April 1, 2017 at a disability level of 30%. The most likely effective date would be January 1, 2010, the date of the claim. Therefore, the claimant would be entitled to back pay from January 1, 2010 to April 1, 2017 at a 30% disability rate, and then monthly installments thereafter at the same disability rate.
Now, as stated above, for most claims, the date of the claim determines the effective date. But not always, and we see exceptions apply particularly for increased rating claims. Let me illustrate the point. A claimant, who has a 30% rating for his service-connected back disability, files a claim for an increased rating on January 1, 2010. On February 1, 2011, the claimant undergoes a VA medical examination, and the physician finds that the claimant’s back disability has not worsened. The regional office denies the increased rating claim and the claim is appealed to the Board of Veterans’ Appeals. The Board remands the claim, instructing the regional office to obtain another VA examination. On March 1, 2015, the claimant sees the second VA examiner, who determines that his back disability has increased to a 50% disability level, but only recently, at or near the time of the second examination. Here, the effective date would be determined by date of the increase of disability, March 1, 2015, not the date of the claim, January 1, 2010.
An unadjudicated claim refers to a claim which remains open due to an oversight in VA system. This can occur during different stages of a claim. In the past, (before the VA instituted mandatory application forms), claimants would often file a morass of written submissions. Buried in these submissions might be statements requesting service-connected benefits, constituting informal claims. Overwhelmed by all the busy text, a VA adjudicator might overlook or even ignore these informal claims. In theory, upon the claimant’s request, these claims can be activated at any time, with a potential effective date relating back to the filing of the claim.
Unadjudicated claims can also arise during the appellate stage. For instance, a claim will remain unadjudicated if the VA fails to issue a Statement of the Case following the timely filing of a Notice of Disagreement. Likewise, a claim will remain unadjudicated if the Board of Veterans’ Appeals fails to adjudicate a claim following the timely filing of a Substantive Appeal.
For effective dates, unadjudicated claims can be gold mines. Recall that effective dates are usually determined by the date of the claim. Therefore, if you find an unadjudicated claim in the file, which has remained dormant for years, maybe even decades, the entitled retroactive/back pay may reach as far back as the filing date of the unadjudicated claim.
Yes, in a few instances, claimants can be awarded benefits prior to the filing date of their claims.
No matter what, a claim is only a claim for VA purposes if it is a written request for benefits. There are countless stories of veterans telling VA adjudicators or veteran service officers of their desire to file a claim, but, for whatever reason, no written claim is filed. And, the VA does a poor job of notifying veterans they have a potential claim. It is unfortunate because, except for the minor exceptions listed above, the effective date of an award can be no earlier than the date of the written claim.
For the longest time, a request for a total disability award based upon individual unemployability (“TDIU”) was considered its own claim. That meant the effective date of a TDIU award could be no earlier than the date of a written TDIU request. In an important case, Rice v. Shinseki, the Veterans Court redefined the status of a TDIU request as an issue tied to a claim, but not a claim in itself. Rice said that the service-connected condition upon which the TDIU was based was the claim, and that the TDIU request was a theory or issue in support of the claim to achieve the highest possible rating.
Rice is good news for assigning earlier effective dates for TDIU awards. Effective dates for TDIU awards can now go back to the date of the underlying claim; whereas before Rice, the effective date was limited to the filing date of the written request for a TDIU award. The effective date assigned will depend upon when the medical evidence shows the claimant’s service-connected disability(ies) prevented him/her from obtaining and maintaining substantial gainful employment.
The process for appealing a denied veteran’s disability claim is lengthy and can be confusing for many people. However, this article will provide step by step explanation to the appeals process.
The first step after receiving a denial of benefits is to make a formal application to VA Form 9. The second step, detailed in the next article, explains how to navigate the Board of Veterans’ Appeals. Hiring an experienced disability claims attorney to help you through the process is your best chance of reversing the decision and getting the benefits you deserve.
Some estimate that there are over 400,000 VA disability claims currently awaiting a decision. After you have applied for benefits with a formal claim, established an effective date for your claim, and your claim is denied, the first step in appealing the decision is to file a Notice of Disagreement with the Rating Decision given to you by the government. Once the VA receives your Notice of Disagreement, the regional office in your area will review the case and create a Statement of the Case for your claim.
The first draft of the Statement of the Case then goes to a higher level of review, known as the DRO. The DRO reviews all of the evidence in the file and then publishes a final Statement of the Case with their decision. The Statement of the Case will either grant or deny your benefits If granted, you still need to make sure that the effective date is correct and that the VA gives you the proper rating. If your claim is still denied, the next step is filing another Notice of Disagreement with the VA to keep your case alive. Within 60 days of receiving your denial of benefits through the Statement of the Case, you must file a Form 9 application with the VA. If the 60 days pass without the filing, your claim is dead.
A Form 9 is also known as a Substantive Appeal Form, and it serves as the formal appeal to the Board of Veterans’ Appeals for disability benefits claims. This form escalates the claim denial from the regional level to the national level of appeal. The statute of limitations for filing is 60 days with the single exception for simultaneously contested claims.
Where two people are fighting over the same disability benefit, where one person will benefit from the decision and the other will lose, the statute of limitations is reduced to only 30 days to file a Form 9. An experienced disability claims attorney understands the deadlines and exceptions to the appeals process and can ensure that all of the proper paperwork is filed in time.
At this point in the appeals process, your claim has been denied at the regional level and you have filed the Form 9 within 60 days of that decision. The next step in the appeals process is taking your case to the Board of Veterans’ Appeals. You have two options at this time, either to request a hearing with a judge or waive the hearing for a Board of Veterans’ Appeals review. If you request a hearing, you will go before a judge to hear your case. The judge will listen to the evidence and render a decision. If you choose to waive the hearing, the Board of Veterans’ Appeals will review the evidence as presented in the case file and Form 9 application.
Once you have made a decision and submitted all relevant evidence for the case to the Board, an administrative law judge is assigned to review the claim. The judge has three options for rendering a decision on your claim. The first is to grant your claim, giving you the benefits requested in the appeal. The second option is to deny your claim, siding with the VA in denying benefits. The third option is to remand your claim to the lower level for continued review.
If the administrative law judge denies the claim, you have options. The first is to ask the judge to vacate the decision. The next is to file a motion to reconsider, and the last option is to further appeal the decision to the U.S. Court of Appeals for Veterans’ Claims (CVAC). If you choose to continue to appeal, the motion must be filed with the CVAC within 120 days of the Board of Veterans’ Appeals decision.
It is important to note that the CVAC is a judicial review court, which means that no new evidence can be submitted to this hearing. The CVAC’s job is to review the judicial findings of the administrative law judge and determine whether there was an error in law made at the lower levels of your case. The CVAC will then either affirm the Board’s decision, vacate the decision, remand the case back to the administrative law judge, or reverse the denial of claims.
We know how hard veterans work to readjust to the civilian work after their tours of duty, applying the same commitment and force of will that kept them going during difficult deployments and challenging assignments. Sometimes, though, struggling past service-connected disabilities to perform a civilian job doesn’t seem to be working. It’s possible that even less than total disability seems to be resulting in employment difficulties. It’s worth finding out whether the veteran is eligible for a 100% disability rating under a theory of Total Disability Individual Unemployability (also known as “TDIU”).
The VA generally refers to a claim as a TDIU claim when two conditions are met: 1) the veteran has one service-connected disability with a 60% or more disability rating, or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability (more about that below). If the veteran satisfies these two conditions, then he will be entitled to be paid at the 100% disability rate, even though he does not satisfy that 100% disability rating under the schedule. See 38 C.F.R. § 4.16(a).
A second method of reaching the same TDIU result is called an extra-schedular rating. An extra-schedular rating applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under § 4.16(a). See 38 C.F.R. § 4.16(b.)
A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001).
Medical evidence of unemployability refers to medical findings of conditions or symptoms that would tend to interfere with the maintenance of regular, full-time employment. Examples could be ongoing panic attacks, social anxiety, frequent emotional outbursts as a result of PTSD, etc.
If you think you might be eligible for TDIU and want to appeal your VA disability decision, Veterans Law Group would love to talk with you. Highly respected in their field, VLG has more than twenty years of experience providing legal help for veterans and their families in their quest for benefits. We can help you obtain additional medical opinion evidence to get you the benefits you deserve.
To get started, simply fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge and require nothing from you. With so much on the line, why not explore your legal options?