Overview
In This Section |
This section contains the following topics:
|
1. General Guidance on Assignment of Effective Dates
Introduction |
This topic includes information about general principles for assigning effective dates, including |
Change Date |
February 19, 2019
|
III.iv.5.C.1.a. Gathering Evidence for Effective Date Determinations |
The assignment of an effective date is an integral part of the decision-making process as it establishes the date from which entitlement to benefits begins.
Effective date determinations are made based on facts gathered during review of the evidence. Particularly, answers to the questions below drive the effective date determination.
Reference: For more information on the impact of the Nehmer court order on assignment of effective dates, see M21-1, Part IV, Subpart ii, 2.C.4.
|
III.iv.5.C.1.b. General Effective Date Rule |
The general rule is that the effective date is assigned based on the date of receipt of claim or the date entitlement arose, whichever is later. Before applying the general rule, however, all information gathered during evidence review must be considered to determine whether a more specific effective date rule applies.
Note: Date of claim and effective date are not synonymous. Although the effective date is often the date of receipt of the claim, the effective date is determined by a variety of factors and is frequently not the same date as the date on which the claim is received.
References: For more information on
|
III.iv.5.C.1.c. Definition: Date Entitlement Arose |
There is no regulatory definition of the phrase date entitlement arose. However, inWright v. Gober, 10 Vet.App. 343 (1997), the phrase “date entitlement arose” was found to be similar to the phrase “facts found.” This case, along with the regulatory context, strongly suggest that the date entitlement arose is the date on which the facts in the case demonstrate that the entitling criteria are first met.
|
III.iv.5.C.1.d. Determining the Applicable Date of Claim for Effective Date Purposes |
When determining the date of claim and its relationship to the proper effective date for assignment, consider the date of receipt of a complete claim, as well as a related intent to file (ITF) or incomplete claim filed within a year prior to the date of receipt of the complete claim.
Notes:
References: For more information on
|
III.iv.5.C.1.f. Effective Date of Entitlement Versus Effective Date of Payment |
Under 38 CFR 3.31, VA may not pay monetary benefits based on an initial or supplemental award of compensation, pension, or Dependency and Indemnity Compensation (DIC) for any period prior to the first day of the calendar month following the month in which the beneficiary became entitled to the benefit.
Reference: For more information on effective date of payment and exceptions to payment under 38 CFR 3.31, see M21-1, Part III, Subpart v, 2.A.2.b.
|
III.iv.5.C.1.g. Effective Date Associated With Sympathetic Reading or a Within Scope Determination |
The effective date of a grant of SC for any disabilities arising from the sympathetic reading of a claim, or finding a disability within the scope of a different claimed disability, is governed by the date of receipt of the expressly claimed issue which resulted from sympathetic reading and/or finding a disability within scope.
Sympathetic reading and/or finding one disability within scope of another claimed disability may occur in any type of claim for compensation (initial, supplemental, etc.) or pension, and potentially in other claim situations.
Examples:
References: For more information on
|
III.iv.5.C.1.h. Impact of PL 112-154, Section 506, on Effective Dates |
In certain situations, retroactive effective dates were warranted under Public Law (PL) 112-154, Section 506, for certain fully developed claims (FDCs), as discussed in M21-1, Part III, Subpart i, 3.B.4.
|
III.iv.5.C.1.i. Maximizing Benefits With Effective Date Determinations |
In some situations, different theories of entitlement allow for assignment of different effective dates. In such cases, consider each effective date rule when assigning an effective date and assign the most advantageous effective date that applies for the facts of the case.
Note: 38 CFR 3.303(d) is not intended to limit the theory under which SC may be established, especially when one theory is more favorable than another. This provision clarifies that SC for disabilities identified as presumptive may also be awarded on a direct basis, but it does not restrict the ability to award SC on a presumptive basis when both direct and presumptive SC may be supported.
Example: A Veteran claims SC for coronary artery disease. The evidence supports entitlement to SC on a presumptive basis for coronary artery disease associated with herbicide exposure, and 38 CFR 3.114 can be applied to grant an effective date one year prior to the date of receipt of the claim. The criteria to grant an earlier effective date under 38 CFR 3.816 in accordance with the holding inNehmer v. United States Veterans Administration, No. CV86-6160 TEH (N.D. Cal.), have not been met. The evidence also supports a grant of SC as secondary to the Veteran’s SC diabetes mellitus. For the secondary theory of entitlement, the effective date would be the date of receipt of the claim. As the presumptive theory allows for assignment of an earlier effective date, SC should be granted on the presumptive basis to allow for maximized benefits.
|
2. Impact of ITF on Effective Date
Introduction |
This topic includes information describing the impact of an ITF on assignment of effective dates, including |
Change Date |
February 19, 2019
|
III.iv.5.C.2.a. Applicability of ITF on Effective Date Assignment |
On March 24, 2015, 38 CFR 3.155 was revised to include procedures for a claimant to indicate a desire to file a claim via submission of an ITF. When an ITF is properly submitted, and a complete initial claim is received within one year of the ITF, the complete initial claim is considered filed as of the date the ITF was received.
Note: The regulations governing ITF acceptance and impact, including 38 CFR 3.155, are not effective date rules. The provisions for ITF apply to the date a claim is considered received, which in turn may impact determinations about effective dates.
Reference: For more information on procedures for handling ITFs, see M21-1, Part III, Subpart ii, 2.C.2-5.
|
III.iv.5.C.2.b. Effective Date of Entitlement Following Receipt of an ITF |
When an ITF is active and an applicable claim is subsequently received within one year of the date of receipt of the ITF, consider the claim received as of the date of receipt of the ITF as discussed in 38 CFR 3.155 and M21-1, Part III, Subpart ii, 2.C.2.
Refer to the table below for exceptional situations impacting assignment of effective dates when an ITF is of record.
|
III.iv.5.C.2.c. Examples of Selecting an Effective Date Following Receipt of an ITF |
The table below contains examples of the proper assignment of effective dates following receipt of an ITF.
|
3. Effective Dates for Direct and Secondary SC
Introduction |
This topic includes information clarifying the principles for assigning effective dates for claims for direct and secondary SC under 38 CFR 3.400(b)(2), including |
Change Date |
December 13, 2018
|
III.iv.5.C.3.a. Procedures for Handling Claims for Direct SC |
Claims for compensation based on direct SC are governed by 38 CFR 3.400(b)(2)(i).
There are two main provisions of this effective date rule.
Exception: If a claim is received to reinstate compensation following a return to active duty, apply 38 CFR 3.654(b) and follow the procedures in M21-1, Part III, Subpart v, 4.C.7.g.
Note: A Veteran may seek entitlement to SC for new disabilities concurrently with a request to reinstate compensation following discharge from a period of active service. The effective date of SC for the newly-claimed disabilities is assigned in accordance with the steps in the table above.
Reference: For more information on effective dates for the resumption of compensation following release from active duty, see M21-1, Part III, Subpart i, 2.C.3.c.
|
The provision of 38 CFR 3.400(b)(2)(i) allowing assignment of an effective date of the day following discharge is not applicable to dishonorable periods of service. Thus, when multiple periods of continuous service are present but the character of service for the last period constitutes a bar to benefits as discussed in 38 CFR 3.12, the effective date will be date of receipt of claim or date entitlement arose, whichever is later.
Example 1: The Veteran had two periods of service which were continuous. The Veteran filed his claim three months after discharge. The last period of service was characterized by a dishonorable discharge, so the character of service is a bar to VA benefits. COD and conditional discharge determinations have been completed per M21-1, Part III, Subpart v, 1.B. SC benefits are warranted based on disabilities incurred during the first period of honorable service.
Analysis: Although the Veteran submitted the claim within one year of the release from active duty, the provision of 38 CFR 3.400(b)(2)(i) allowing assignment of an effective date the day following discharge is not for application because the last period of service is dishonorable. The claim was not submitted within one year of the honorable period of service; the proper effective date is the date of receipt of the claim.
Example 2: The Veteran had two periods of service which were continuous. The Veteran filed his claim prior to discharge from the last period of service. The last period of service was characterized by a dishonorable discharge, so the character of service is a bar to VA benefits. COD and conditional discharge determinations have been completed per M21-1, Part III, Subpart v, 1.B. SC benefits are warranted based on disabilities incurred during the first period of honorable service.
Analysis: The Veteran is not entitled to VA compensation while he or she is receiving active service pay, per 38 CFR 3.654(b). Under 38 CFR 3.400(b)(2)(i), the effective date is the date of claim or the date entitlement arose, whichever is later. In this situation, the date entitlement arose is later than the date of claim. The effective date is the day following separation date for the period of dishonorable service, which is the date entitlement arose.
|
Although 38 CFR 3.310 directs that a secondary disability shall be considered a part of the original condition, this regulation covers entitlement to secondary SC but does not direct assignment of an effective date.
References: For more information on
|
The effective date assigned for a secondary SC disability cannot be earlier than the effective date assigned for the causal or primary SC disability.
When a claim for SC for a disability is pending and subsequent development of the claim reveals that the disability is caused by a disability that may be associated with service, the decision maker must investigate the possibility of SC for the unclaimed causal disability as well as SC on a secondary basis for the claimed disability.
References: For more information on
|
4. Effective Dates for Presumptive SC
Introduction |
This topic includes information clarifying the principles for assigning effective dates for claims for presumptive SC including |
Change Date |
September 22, 2017
|
III.iv.5.C.4.a. Effective Dates for Presumptive SC |
The assignment of effective dates for presumptive SC is regulated by 38 CFR 3.400(b)(2)(ii).
The effective date will be the day following separation from service when all of the following criteria are met:
The effective date will be the date entitlement arose when all of the following criteria are met:
When the claim is not received within one year of separation from active service, the general rule applies and the effective date will be date of receipt of claim or date entitlement arose, whichever is later, unless another effective date rule applies. For example, 38 CFR 3.114 may apply to the assignment of an effective date for presumptive SC.
Reference: For more information on presumptive SC, see
|
III.iv.5.C.4.c. Example 2: Assigning Effective Dates for Presumptive SC |
Facts: The Veteran was discharged March 3, 1972. On February 22, 2017, he submitted a claim for SC for type 2 diabetes mellitus associated with herbicide exposure during his confirmed service in Vietnam. Private treatment records confirm that the Veteran has been diagnosed with and treated for type 2 diabetes mellitus since 2015.
Analysis: The claim for SC was received more than one year following discharge from active service. As the entitling criteria were all met as of the date of receipt of the claim, the proper effective date is the date of receipt of the claim. 38 CFR 3.114 is not for application, since the diabetes was first diagnosed in 2015, nor is any other effective date provision.
|
5. Effective Dates for Claims for Increased Compensation
Introduction |
This topic includes information clarifying the principles for assigning effective dates for claims for increased compensation under 38 CFR 3.400(o), including |
Change Date
|
February 19, 2019
|
III.iv.5.C.5.a. Regulatory Provisions Applicable to Claims for Increase |
Claims for increase are regulated by 38 CFR 3.400(o). The effective date for a claim for increase will be the general rule, which is date of receipt of the claim or date entitlement arose, whichever is later, unless one of the following three exceptions apply:
Important: If an increased evaluation is awarded as part of a continuously pursued issue, the effective date is assigned based on 38 CFR 3.2500(h)(1).
References: For more information on assigning effective dates for increased evaluations
|
III.iv.5.C.5.b.Application of 38 CFR 3.400(o)(2) |
Receipt of medical reports may be used to establish effective date(s) for retroactive benefits based on facts found on an increase in disability. The effective date will be the earliest date it is factually ascertainable that the increase in disability occurred if all the following criteria are satisfied:
References: For more information on assigning effective dates
|
III.iv.5.C.5.c.Effective Dates for IU under 38 CFR 3.400(o)(2) |
In Norris v. West, 12 Vet.App. 413, 420 (1999), the Court of Appeals for Veterans Claims (CAVC) held that evidence of a Veteran’s unemployability arising from an already SC disability is evidence of an increase in the severity of that disability.
When considering a claim for individual unemployability (IU) based on an already SC disability(ies), review the evidence to determine whether it is factually ascertainable that the criteria for entitlement to IU was first met during the one-year period prior to the date of receipt of the claim.
To determine whether an earlier effective date for IU under 38 CFR 3.400(o)(2)may be assigned, one of the two criteria for entitlement for IU under 38 CFR 4.16(a) must be demonstrated during the one year prior to date of receipt of the IU claim.
When the evidence shows that one or both criteria below are satisfied in the one-year period prior to the date of receipt of the IU claim, an earlier effective date for IU under 38 CFR 3.400(o)(2) is warranted based on the date one or both criteria are satisfied. Those criteria are:
Important:
References: For more information on
|
III.iv.5.C.5.d.Example of IU Effective Date Impacted by 38 CFR 3.400(o)(2) |
Facts: A Veteran submitted a claim for increased evaluation of his 30-percent disabling SC posttraumatic stress disorder (PTSD) on June 12, 2016. The combined evaluation of the Veteran’s SC disabilities was 70 percent, with a single disability evaluated as 40-percent disabling, since 2010. Development of the claim confirmed that the evaluation of the PTSD warranted an increase to 50 percent. A rating decision dated December 5, 2016, granted the increased evaluation, and the combined evaluation of the Veteran’s SC disabilities increased to 80 percent effective June 12, 2016. The Veteran was notified of the decision on December 5, 2016.
The Veteran subsequently submitted VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, on February 17, 2017, reporting that he had stopped working in 2012 due to his SC PTSD and other disabilities. Development of the claim confirmed that entitlement to IU was warranted due to the combined effects of the Veteran’s SC disabilities.
Analysis: Since the Veteran last worked in 2012, which is more than one year prior to the claim, 38 CFR 3.400(o)(2) may not be applied to grant an effective date coinciding with the cessation of employment. However, since the claim for increase, received on June 12, 2016, resulted in a combined evaluation that satisfied the schedular criteria for potential IU entitlement and the claim for IU was received within one year of the December 5, 2016, decision granting that combined evaluation, 38 CFR 3.400(o)(2) applies to the effective date. Consequently, the proper effective date for the grant of IU is June 12, 2016, the date of receipt of the claim for increased evaluation since IU was an issue eventually associated with that claim for increase and it is factually ascertainable that the increase occurred within one year of the date of receipt of the IU claim.
|
III.iv.5.C.5.e.Handling Effective Dates for Complications or Residuals of an SC Disability |
When the evaluation criteria in 38 CFR Part 4 or other policy or procedural guidance directs that a given disability is to be rated based on residuals or that complications for a given disability are to be rated separately, the complications or residuals are considered increased manifestations of the primary disability. Consequently, the applicable effective date rule is 38 CFR 3.400(o).
Example 1: The evaluation criteria for diabetes under 38 CFR 4.119, Diagnostic Code (DC) 7913, include the presence of complications of diabetes as a determinant of the proper evaluation. Note (2) under the evaluation criteria instructs the rating activity to evaluate complications of diabetes separately if doing so would result in a greater evaluation. Because of the language in 38 CFR 4.119, DC 7913, the diagnosed complications of diabetes establish a worsening of the disability, and the provisions of 38 CFR 3.400(o) are applicable in determining the effective date of increased compensation, whether the evaluation of diabetes is increased or the complications of diabetes are separately established as SC.
Example 2: The evaluation criteria for diseases and injuries of the spine under 38 CFR 4.71a, DC 5235-5242, Note 1, directs that associated objective neurological abnormalities be evaluated separately under an appropriate DC. Based on this note, objective neurological abnormalities establish a worsening of the spinal disability, and the provisions of 38 CFR 3.400(o) are applicable in determining the effective date of increased compensation based on the presence of the neurological impairment, without regard to whether the evaluation for the spinal disability is increased.
Note: Although the disabilities are considered worsening of the primarily diagnosed disability, procedural conventions within Veterans Benefits Management System – Rating (VBMS-R) require that the disabilities be coded as secondary to establish the connection between the primary disability and the associated complications or residuals. However, the VBMS-R convention of identifying the disability as secondary does not impact assignment of an effective date.
References: For more information on
|
III.iv.5.C.5.f. Claims for Increase Received With Requests for Reinstatement |
Veterans often file a claim for an increased disability rating concurrently with their request for reinstatement of disability compensation following discharge from a period of active service. Follow the procedures at M21-1, Part III, Subpart v, 4.C.7.g for control of the claim and reinstatement of compensation.
The effective date for the increased evaluation, if warranted, is regulated by 38 CFR 3.400. The effective date is the earlier of the following dates:
Note: The effective date may never fall within a period of active duty.
|
6. Effective Dates for Previously Decided Claims on and After February 19, 2019
Introduction
|
This topic contains information about assigning effective dates for previously decided claims on and after February 19, 2019, including
|
Change Date
|
February 19, 2019
|
III.iv.5.C.6.a. Considerations Relevant to Previously Decided Claims |
On and after February 19, 2019, when deciding an effective date for a previously decided claim, decision makers must consider whether the underlying issue is
|
III.iv.5.C.6.b. Continuously Pursued Claims |
If an issue is continuously pursued under 38 CFR 3.2500(c) as a higher-level review (HLR), supplemental claim, or appeal to the Board of Veterans’ Appeals (BVA) (or a timely combination of any of those review options, in succession), decision makers must apply the effective date provisions of 38 CFR 3.2500(h)(1), which allows for an effective date based on the date of receipt of the initial claim, or the date entitlement arose, whichever is later.
Exception: If another, more specific provision of 38 CFR 3.400 applies to the claim’s unique facts, then that effective date rule takes precedence.
Reference: For an example of an effective date assigned under 38 CFR 3.2500(h)(1), see M21-1, Part III, Subpart iv, 5.C.6.d.
|
III.iv.5.C.6.c. Supplemental Claims Received After the Prior Claim Has Become Finally Adjudicated |
If a supplemental claim is received after the prior claim has become finally adjudicated under 38 CFR 3.160(d), decision makers must apply the effective date provisions of 38 CFR 3.2500(h)(2), which state that the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.
Exception: If another, more specific provision of 38 CFR 3.400 applies to the claim’s unique facts, then that effective date rule takes precedence.
Reference: For an example of an effective date assigned under 38 CFR 3.2500(h)(2), see M21-1, Part III, Subpart iv, 5.C.6.e.
|
III.iv.5.C.6.e. Example: Effective Date Assigned Under 38 CFR 3.2500(h)(2) |
Facts: VA issues a rating decision and corresponding decision notice on September 17, 2017, denying SC for right knee patellofemoral syndrome (PFS). A VA examination and medical opinion obtained in connection with the claim determined that the probability of a relationship between the right knee PFS and military service was less likely than not. On March 1, 2019, the Veteran submits a supplemental claim accompanied by a private medical opinion that favorably relates the right knee PFS to in-service treatment for similar symptoms. The rationale of the private medical opinion is deemed more persuasive than that of the original VA examination and opinion.
Analysis: SC is granted with an effective date of March 1, 2019, the date of receipt of the supplemental claim. All elements required to establish SC were met, but the supplemental claim was received after the prior decision became finally adjudicated under 38 CFR 3.160(d).
|
III.iv.5.C.6.f. Effective Date Considerations for Incomplete Supplemental Claims |
After receiving an incomplete supplemental claim, VA must notify the claimant (and representative, if any) of the information necessary to render the claim complete. If VA receives that information within 60 days of such notice, it will be considered filed, for potential effective date purposes, as of the date of receipt of the incomplete claim.
References: For more information on
|
7. Effective Dates Based on Receipt of Additional Service Department Records
Introduction |
This topic includes information about assigning effective dates based on receipt of additional service department records, including
|
Change Date |
February 19, 2019
|
III.iv.5.C.7.a.Effective Date of Claims Reconsidered Under 38 CFR 3.156(c) |
38 CFR 3.156(c) allows for reconsideration of a claim based on receipt of new service department records that had not been previously considered with the claim.
This regulation
Notes:
References: For more information on
|
III.iv.5.C.7.b. Effective Dates Based on Herbicide Exposure and CFR 3.156(c) |
If a claim based on exposure to herbicides was previously denied because available service records did not establish the Veteran had qualifying service, decision makers must review any newly available service records to determine if new evidence of qualifying service exists.
Reconsider the claim under 38 CFR 3.156(c) if newly received service records establish
As stated in 38 CFR 3.156(c)(3), if the evidence now justifies the establishment of SC, the effective date will be the later of
Notes:
References: For more information on
|
III.iv.5.C.7.c. Examples of Effective Dates Assigned Under 38 CFR 3.156(c) |
Example 1: VA denied SC as “not incurred in service” for low back strain for a claim received on December 5, 1999. Although medical evidence at that time revealed the existence of “lumbosacral strain,” STRs did not reveal treatment in service. On March 3, 2003, VA received additional STRs not part of the claims folder at the time of the original decision that revealed treatment in service for a low back injury.
Analysis: As the STRs existed at the time of the prior decision and the Veteran provided sufficient information to identify them at the time of the prior claim, the prior claim may be reconsidered. Assuming that a current disability and link to service exists, establish SC for the low back condition effective December 5, 1999, the date of receipt of the prior claim.
Example 2: A Veteran claimed SC for lung cancer due to herbicide exposure on June 12, 2005. Medical evidence confirmed a diagnosis of lung cancer in 2004. The Veteran provided a statement indicating that while serving with the U.S. Navy, his ship docked and he went ashore. The evidence did confirm that he was aboard the ship at the time period he reported. SC was denied in a rating decision in 2006 due to the fact that there was no evidence that the Veteran served in-country in Vietnam.
The Veteran requested to reopen his claim on August 12, 2016. He again submitted a statement indicating that his ship docked and he went ashore. TheNavy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents development tool confirmed that the Veteran’s ship docked to the shore in Vietnam at the time he served aboard.
Analysis: As the evidence of record at the time of the Veteran’s 2005 claim provided all the information needed to concede exposure based on service aboard the ship that docked in Vietnam, and service records (described in the Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents development tool) later became available to concede exposure based on the evidence previously of record, the 2005 claim must be reconsidered and revised. Presuming all other criteria required to grant SC were satisfied at the time of the 2005 claim, SC is warranted with an effective date of June 12, 2005.
|
III.iv.5.C.7.d. October 2006 Substantive Rule Change to 38 CFR 3.156(c)(2) |
38 CFR 3.156(c)(2) was added on October 6, 2006. This revision added the requirement that the claim may not be reconsidered under 38 CFR 3.156(c)(1) if the records could not have been obtained when the prior claim was decided because
In Cline v. Shinseki, 26 Vet.App. 18 (2012), CAVC indicated that the plain language of 38 CFR 3.156(c)(2), when compared to the plain language of pre-amendment 38 CFR 3.156(c), created a bar to reconsideration based on newly associated service department records in particular circumstances where absolutely no bar previously existed. Thus, CAVC held that the addition of subsection (c)(2) was a substantive rule change. In claims filed prior to or pending at the time of the October 2006 addition of 38 CFR 3.156(c)(2), the version of 38 CFR 3.156(c) in effect prior to the regulatory revision should be applied.
References: For more information on
|
8. Determining Effective Dates Based on New Guidance
Introduction |
This topic includes information clarifying the principles for determining effective dates when a decision is impacted by new guidance, including
|
Change Date |
February 19, 2019
|
III.iv.5.C.8.b. Significance of Changes of Law |
Appropriately analyzing changes of law is critical to adjudication. For the purpose of this block, law means statutory changes, regulatory changes, or precedential case law. Changes of law may alter the standard of entitlement, the burden of proof, the extent of the duty to assist, substantive due process requirements, the existing understanding of medical or legal concepts, or agency procedures.
For new claims received after a change of law has become effective that affects the standard of entitlement to a benefit, the main consideration for decision makers is effective date. It is important to analyze whether the newly applicable law has a liberalizing effect or potentially an adverse effect requiring the reduction or discontinuance of benefits.
Note: Some changes of law may necessitate a general review of potentially-impacted past claimants and current beneficiaries who do not have claims pending. This may consist of outreach or even re-adjudication of claims. However general reviews are not routinely mandated and should never be initiated by field decision makers in the absence of a specific agency directive permitting authorized review jurisdiction.
With respect to claims pending when a change of law on the standard of entitlement becomes effective, the change creates a question of choice of law (applicability) and, potentially, effective date issues. Failure to properly analyze the new law (and apply the new law as applicable) may result in an error or other need for correction of the rating decision.
References: For more information on
|
III.iv.5.C.8.c. Awarding Retroactive Benefits Based on a Law Change |
Under 38 CFR 3.114(a), VA may award retroactive benefits if the claimant had potential entitlement at the time the liberalizing law, VA issue, such as certain precedent opinions of VA General Counsel, or regulation became effective.
This regulation applies to
Note: A liberalizing law is one which brings about a substantive change in the law creating a new and different entitlement to a benefit.
References: For more information on
|
III.iv.5.C.8.d. Origin of Liberalizing Issue |
A liberalizing issue originates from
|
III.iv.5.C.8.e. Origin of VA Issue |
A VA issue originates from an existing regulation or a new regulation issued by VA.
|
III.iv.5.C.8.f. Provisions of 38 CFR 3.114(a) on Eligibility for Retroactive Benefits |
The provisions of 38 CFR 3.114(a) for retroactive benefits apply to claimants who become eligible for initial or increased benefits solely because of liberalizing changes in law or administrative issues.
To be eligible for retroactive awards, the claimant must meet the eligibility requirements of the liberalizing law or regulations
Important:
References: For more information on
|
III.iv.5.C.8.g. Example 1: Age-65 Liberalizing Legislation in a Pension Claim |
Situation: A Veteran, age 85, is granted Veterans Pension based on his date of claim of October 17, 2014. The grant is based on monthly retirement income of $1,200.00 and annual medical expenses of $4,858.00 (consisting of monthly Medicare Part B premiums of $104.90 and monthly supplemental health insurance of $300.00).
The Veteran submits a claim for an earlier effective date under liberalizing legislation within one year of VA’s decision notice, showing that income and net worth have not changed from the previous year. However, medical expenses are slightly different in that the health insurance of $300.00 did not start until October 1, 2014. Additionally, the claimant submitted $600.00 in eye care expenses paid in December 2014.
Result: The Veteran is eligible for consideration of an earlier pension effective date because he was age 70 on September 17, 2001, the effective date of section 207 of PL 107-103. However, when entitlement is considered from October 17, 2013, based on the reported income and the corrected medical expense information, the Veteran’s IVAP exceeds the MAPR. A retroactive benefit for the liberalized period cannot be granted because there was not a change in MAPR that allowed for a partial grant of benefits within the liberalized period.
|
III.iv.5.C.8.h. Example 2: Age 65 Liberalizing Legislation in a Pension Claim |
Situation: A Veteran, age 85, is granted Veterans Pension based on her date of claim of October 17, 2014. The grant is based on monthly retirement income of $1,200.00 and annual medical expenses of $4,858.00 (consisting of monthly Medicare Part B premiums of $104.90 and monthly supplemental health insurance of $300.00).
The Veteran submits a claim for an earlier effective date under liberalizing legislation within one year of VA’s decision notice, showing that net worth and medical expenses have not changed for the prior year. However, income is slightly different in that she received a one-time inheritance of $5,000.00 on March 15, 2014.
Result: The Veteran is eligible for consideration of an earlier date because she was age 70 on September 17, 2001, the effective date of section 207 of PL 107-103. When entitlement is considered from October 17, 2013, based on the reported income and medical expense information, the Veteran’s IVAP is below the applicable MAPR. Therefore, the Veteran is entitled to an earlier pension effective date. VA grants pension from October 17, 2013, payable November 1, 2013. VA must readjudicate the award and count the inheritance of $5,000 from April 1, 2014, to April 1, 2015. Pension payments are stopped from April 1, 2014, to April 1, 2015, as the Veteran’s IVAP exceeds the MAPR. VA can re-start the award effective April 1, 2015, payable May 1, 2015, if evidence is available or submitted to show that the Veteran meets the income and net worth criteria for benefits from April 1, 2015. If not, the Veteran may reapply for benefits at a later date.
Note: Because the Veteran claimed an earlier effective date for pension under liberalizing legislation, VA must readjudicate the claim based on the facts found. VA has no authority to pick and choose the award effective date. The Veteran has the choice to claim an earlier effective date under liberalizing legislation. Therefore, if a claim is submitted, VA must readjudicate the claim using all of the facts and information submitted by the Veteran. This would include counting all reported income and considering all allowable medical expenses applicable during the liberalized period.
References: For more information on
|
III.iv.5.C.8.i. Awarding or Increasing Benefits Under 38 CFR 3.114 |
If a liberalizing law or approval of a liberalizing VA issue, such as a change in rating or dependency criteria, establishes liberalized standards of entitlement, then award or increase benefits retroactively, as outlined in the table below.
Exception: This does not apply for any period prior to December 1, 1962.
Note: If an ITF was received within one year from the effective date of the law and the claimant submits a complete claim within a year of VA receiving the ITF for the same benefit, the benefits may be awarded from the effective date of the law or VA issue.
Reference: For more information on ITF, see M21-1, Part III, Subpart ii, 2.C.2-5.
|
III.iv.5.C.8.k. Provision of Due Process for Reducing or Discontinuing Awards Under 38 CFR 3.114(b) |
Under 38 CFR 3.114(b), VA must provide due process if a new law, regulation, change in the interpretation of a law, or issue requires VA to reduce or discontinue benefits that were properly authorized under instructions in effect at the time the award was processed. VA must
Make the proposed change effective the first of the month following the date on which the 60-day due process period ends, unless VA receives evidence within 65 days of the date of the notice of proposed adverse action that shows VA should nottake the proposed action.
Reference: For more information on the due process procedures and requirements, see M21-1, Part I, 2.
|
III.iv.5.C.8.l. Example of Staged Rating Impacted by 38 CFR 3.114 |
Facts: A Veteran with verified in-country service in Vietnam submits an original claim for SC for type 2 diabetes mellitus on January 1, 2014, along with evidence dated January 1, 1999, showing confirmed diagnosis of diet-controlled diabetes. A VA examination conducted on February 3, 2014, shows the Veteran uses insulin.
Analysis: As all of the entitling criteria for a grant of SC were met as of the date of the law change to recognize type 2 diabetes mellitus as a presumptive disability associated with herbicide exposure, per 38 CFR 3.114(a)(3), a one-year retroactive effective date is warranted for the grant of SC. Thus, SC is granted January 1, 2013. A 10-percent evaluation is warranted from January 1, 2013, since the evidence shows only diet-controlled diabetes. Effective February 3, 2014, the first time the evidence showed the requirement for insulin, a 20-percent evaluation is warranted.
|
III.iv.5.C.8.m. Retroactive Applicability of Revised Rating Schedule Criteria to Increased Rating Claims |
When VA issues an amendment to the rating schedule while an increased rating claim is pending, and that amendment is more favorable to the claimant than the prior regulation, VA should apply the
Refer to the table below for the three-step analysis involved in deciding the claim for increased rating in situations in which the rating criteria is revised during the pendency of the claim.
References: For more information on
|
III.iv.5.C.8.n. Effective Dates Based on Judicial Precedents |
A precedential decision by CAVC, U.S. Court of Appeals for the Federal Circuit, or the U.S. Supreme Court that affects a statute, regulation, or other VA rule is legally binding upon VA effective the date of the issuance of the decision. The effect of such a decision may result in different effective dates for different classes of claimants with regard to the issue decided.
A court’s decision is not a liberalizing issue for purposes of application of 38 CFR 3.114. However, if CAVC’s decision results in an amendment to a regulation or statute, then the claimant or appellant may be entitled to retroactive disability or death benefits under the provision of 38 CFR 3.114(a). When regulatory revision results, the claimant may receive retroactive benefits for a period of up to one year prior to the date of receipt of the claim, but no earlier than the effective date of the amended regulation or statue.
Refer to the table below to determine the impact of a judicial precedent on an effective date.
Notes:
References: For more information on
|
III.iv.5.C.8.o. Example: Effective Date Based on Judicial Precedent: Pending Claim |
Facts: In Esteban v. Brown, 6 Vet.App. 259 (1994), CAVC liberally interpreted VA’s rule against pyramiding in a manner favorable to the claimant.
On September 1, 1993, a Veteran submitted a claim for an increased evaluation for his SC facial injury. The claim was still pending on the date of CAVC’s decision forEsteban v. Brown.
Analysis: An increased evaluation was granted based solely upon the Estebandecision for the residuals of the facial injury because the Veteran’s condition met the criteria for the increased evaluation.
The effective date in this case is September 1, 1993, the date of claim since the claim was pending on the date of the precedential decision. The assignment of the effective date is not limited to the date of the CAVC decision since it did not result in a liberalizing regulation.
|
III.iv.5.C.8.p. Example: Effective Date Based on Judicial Precedent: Prior Decision Not Final |
Facts: In Petitti v. McDonald, 27 Vet.App. 415 (2015), CAVC liberally interpreted VA’s regulation at 38 CFR 4.59 concerning assignment of a compensable evaluation based on painful motion for a joint.
On January 22, 2015, the Veteran claimed SC for a right knee condition. SC was granted for chronic right knee strain with a 0-percent evaluation. The VA examination revealed no objective evidence of painful motion on examination. No other objective evidence of painful motion was of record. The Veteran was notified on June 13, 2015, of a grant of SC with a 0-percent evaluation assigned.
On February 11, 2016, the Veteran’s authorized representative submitted a request to reconsider the 0-percent evaluation in connection with the CAVC holding inPetitti. The evidence of record at the time of the non-final decision to assign a 0-percent evaluation did include credible lay evidence of painful motion.
Analysis: As the June 13, 2015, decision was not final at the time of the October 28, 2015, CAVC Petitti holding, the ruling of CAVC must be considered in deciding the pending request for reconsideration. Accordingly, as the holding allows for assignment of the higher 10-percent evaluation based on credible lay evidence of painful motion, the prior decision must be reconsidered and a 10-percent evaluation assigned effective January 22, 2015, the date of receipt of the prior, non-final claim. The assignment of the effective date is not limited to the date of the CAVC decision since it did not result in a liberalizing regulation.
|
III.iv.5.C.8.q. Example: Effective Date Based on Judicial Precedent: Liberalizing Regulation |
Facts: In Gregory v. Brown, 5 Vet.App. 108 (1993), CAVC invalidated portions of38 CFR 3.53(a). VA subsequently published an amendment to that regulation that implemented CAVC’s holding with an effective date of the regulation retroactive to May 13, 1993, the date of CAVC’s decision. On June 1, 1994, the surviving spouse, who had a final decision denying benefits in 1985 due to reliance on the now invalidated regulation, filed a claim.
Analysis: Because VA issued liberalizing regulations to implement the decision, the
|
III.iv.5.C.8.r. Example: Effective Date Based on Judicial Precedent; No Regulatory Change |
Facts: Although CAVC’s decision in Esteban v. Brown, 6 Vet.App. 259 (1994), liberally interpreted VA’s rule against pyramiding in a manner favorable to the claimant, VA determined that no regulatory changes were required as a result of that decision.
On June 10, 1994, a Veteran submitted a claim for an increased evaluation for residuals of his SC facial injury. The claim was received after the date of theEsteban decision.
Analysis: Based solely on CAVC’s decision, the evaluation of the facial injury was increased effective June 10, 1994, the date of receipt of claim.
The provisions of 38 CFR 3.114(a) do not apply. No retroactive award is warranted because CAVC decisions are not liberalizing issues for purposes of a retroactive effective date.
|
III.iv.5.C.8.s. Effective Dates Based on General Counsel Opinions |
In most instances, General Counsel opinions interpret statutes and regulations and thus generally clarify existing law rather than change law. Consequently, they usually do not represent changes in law or VA issue for the purposes of application of 38 CFR 3.114.
However, on occasion a General Counsel opinion may conclude that a prior VA interpretation of the law was erroneous and announce a new interpretation for future use. Such an opinion would constitute a change in law or VA issue for purposes of application of 38 CFR 3.114.
Reference: For more information on applicability of 38 CFR 3.114 associated with General Counsel opinions, see VAOPGCPREC 88-1990.
|
9. Claims for Earlier Effective Dates
Introduction |
This topic includes information clarifying the principles for determining effective dates when a decision is impacted by new guidance, including
|
Change Date |
February 19, 2019
|
III.iv.5.C.9.a. Requests for an Earlier Effective Date |
In Rudd v. Nicholson, 20 Vet.App. 296 (2006), CAVC held that VA has no authority to adjudicate a “freestanding” request for an earlier effective date in an RO decision that has become finally adjudicated under 38 CFR 3.160(d).
Although VA cannot consider a request for an earlier effective date on a finally adjudicated RO decision, the claimant may allege CUE with respect to the assignment of the effective date in that prior decision. In order for the CUE claim to be considered valid, the claimant must specify the factual or legal errors at issue.
Example: A claimant’s statement that “my effective date is wrong, or “I want an earlier effective date” does not sufficiently specify the factual or legal error at issue.
References: For more information on
|
III.iv.5.C.9.b. Processing Freestanding Requests for an Earlier Effective Date |
Use the table below to determine how to process a freestanding request for an earlier effective date.
References: For more information on
|
10. Effective Dates Based on Historical 38 CFR 3.157
Introduction |
This topic includes information explaining the historical relevance of and clarifying the principles for determining effective dates under historical 38 CFR 3.157, including
|
Change Date |
September 22, 2017
|
III.iv.5.C.10.a. Applicability of 38 CFR 3.157 |
38 CFR 3.157 is a historical regulation that provided that evidence of examination or hospitalization may be accepted as an informal claim for increase or to reopen.
References: For more information on
|
III.iv.5.C.10.b. Effective Dates for Claims Under 38 CFR 3.157 |
As assignment of effective date is often determined by the date of receipt of a claim, it is important to understand that 38 CFR 3.157 was a rule that defined what may be accepted as an informal claim as well as when the claim is considered received.
Particularly, 38 CFR 3.157 directed that informal claims based on receipt of
The following types of informal claims may result from receipt of reports of examination or hospitalization under 38 CFR 3.157:
|
III.iv.5.C.10.c. Continuing Impact of 38 CFR 3.157 on VA or Uniformed Service Facility Records |
Although 38 CFR 3.157 was removed, it continues to have the potential to impact claims processing and assignment of effective dates.
Its continued effect means, in part, that any report of examination or hospitalization from a VA or uniformed services facility dated prior to March 24, 2015, without regard to the date the evidence is incorporated in the claims folder, may potentially be accepted as an informal claim if the requirements as described in the regulation and within this topic are otherwise satisfied.
Example: A Veteran submitted a claim for increased evaluation of his SC diabetes on July 14, 2016. The diabetes was evaluated as 10-percent disabling at the time the claim was received. The resultant VA examination, dated September 22, 2016, revealed that the Veteran was following a diabetic diet and using oral medication to treat the diabetes. VA treatment records, incorporated into the claims folder on August 15, 2016, confirmed that the Veteran was first prescribed Metformin on February 12, 2014.
Analysis: Since the VA treatment records showing the increased symptomatology of the SC disability via prescription of Metformin are dated prior to March 24, 2015, they must be accepted as an informal claim for increase in the diabetes. The claim is considered received on the date of the outpatient examination in which the increase was shown. Thus, the proper effective date for the increased evaluation from 10 to 20 percent for the SC diabetes is February 12, 2014, the date of receipt of the informal claim.
|
III.iv.5.C.10.d. Holdings and Opinions Relevant to Application of 38 CFR 3.157(b)(1) |
The following court holdings and General Counsel opinion clarify the applicability of38 CFR 3.157(b)(1).
|
11. Effective Dates Based on Historical 38 CFR 3.155
Introduction |
This topic includes information clarifying the principles for determining effective dates under historical 38 CFR 3.155, including
|
Change Date |
September 22, 2017
|
III.iv.5.C.11.a. Applicability of Informal Claims |
Informal claims were authorized under 38 CFR 3.155 prior to March 24, 2015. Although the Standard Claims and Appeals Rule revised 38 CFR 3.155 and eliminated provisions for acceptance of informal claims, informal claims may still apply when received prior to March 24, 2015. Recognizing informal claims is important in the proper assignment of effective dates as well as in understanding historical entitlement decisions.
Notes:
Reference: For more information on the historical criteria for informal claims, see
|
III.iv.5.C.11.b. Applicability of 38 CFR 3.114 to Informal Claims |
When 38 CFR 3.114 applies to a disability claim and an informal claim was received prior to March 24, 2015, apply 38 CFR 3.114 based on date of receipt of the informal claim. Under the historical 38 CFR 3.155, the claim is considered received as of the date of receipt of the informal claim.
|
12. Other Effective Date References
Introduction
|
This topic includes cross references for other effective date guidance including information on effective date provisions for
|
Change Date |
February 19, 2019
|
III.iv.5.C.12.a. Due Process and Reduction of Compensation |
For more information on
|
III.iv.5.C.12.b. Legacy Appeals |
For more information on
|
III.iv.5.C.12.c. Specific Disabilities |
Refer to the table below for more information on effective date considerations for claims associated with the following specific disabilities or types of disabilities.
|
III.iv.5.C.12.d. Change in Military Status |
For more information on
|
III.iv.5.C.12.e. Election of Benefits and Military Retired Pay |
For more information on assignment of effective dates for
|
III.iv.5.C.12.f. Pension |
For more information on
|
III.iv.5.C.12.g. Death |
For more information on
|
III.iv.5.C.12.h. Survivor’s Benefits |
For more information on
|
III.iv.5.C.12.i. Dependents |
For more information on
|
III.iv.5.C.12.j. Other Benefits |
For more information on
|
Historical_M21-1III_iv_5_SecC_1-2-18.docx | May 15, 2019 | 185 KB |
5-8-18_Key-Changes_M21-1III_iv_5_SecC.docx | May 15, 2019 | 150 KB |
2-19-19_Key-Changes_M21-1III_iv_5_SecC.docx | May 15, 2019 | 137 KB |
Historical_M21-1III_iv_5_SecC_12-13-18.docx | May 15, 2019 | 146 KB |
9-22-17_Key-Changes_M21-1III_iv_5_SecC.docx | May 15, 2019 | 178 KB |
in Chapter 5 Evaluating Evidence and Making a Decision, Part III General Claims Process, Subpart iv General Rating Process
Related Articles