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M21-1, Part III, Subpart iv, Chapter 5, Section C – Effective Dates

Overview


In This Section

This section contains the following topics:
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1.  General Guidance on Assignment of Effective Dates


Introduction


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.
  • Assignment of effective date for the purposes of payment of benefits is directed in statute at 38 U.S.C. 5110 and regulated by 38 CFR 3.400.
  • Assignment of effective date for general purposes associated with reductions and discontinuances is directed in statute at 38 U.S.C. 5112and regulated by 38 CFR 3.500.
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.
  • What is the issue?  Some examples of types of issues include but are not limited to
    • claim for
      • service connection (SC)
      • pension entitlement, or
      • increased evaluation, or
    • a request
      • to review a prior claim
      • to add a dependent, or
      • for burial benefits.
  • What is the date of receipt of claim?
  • What is the date basic entitlement arose?
  • Do any liberalizing laws or other Department of Veterans Affairs (VA) issues apply?  Some examples of liberalizing laws or other VA issues include but at not limited to
    • 38 CFR 3.114 for changes in law or issue, or
    • the Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.), court order.
  • Is this a continuously pursued claim or issue under 38 CFR 3.2500?
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:
  • Do not associate an ITF with a supplemental claim.
  • If a claimant files both an ITF and an incomplete claim before the complete claim is filed, the complete claim will be considered filed as of the date of receipt of whichever was filed first, provided it is perfected within the necessary timeframe.
References:  For more information on

III.iv.5.C.1.e.Determining Whether Date of Claim or Date Entitlement Arose is Later

The determination as to whether the date of claim or date entitlement arose is later, as specified in the general rule, is dependent on the date when the entitling criteria for the benefit sought are met.

  • The entitling criteria for a claim are frequently met on or before the date of claim based on the lay, medical, and other information presented during the entire process of claim development.
  • When applying the general rule, the assignment of an effective date based on date entitlement arose being later than the date of receipt of the claim is only appropriate when the evidence clearly establishes that the entitling criteria were not met as of the date of receipt of the claim.
Example 1:  A Veteran claims SC for a knee condition with pain on March 21, 2015.  There are no post-service treatment records submitted with the claim.  Service treatment records (STRs) do show treatment for chronic knee pain and complaints of instability during service.  The VA examination dated July 14, 2015, confirms a diagnosis of patellofemoral pain syndrome.
Analysis:  The entitling criteria are met on or before the date of the claim because the Veteran reported the presence of a chronic disability which was later confirmed on examination and linked to military service.  There is no affirmative evidence indicating that the knee disability was not present on the date of receipt of the claim.  In fact, the evidence indicates the presence of a chronic knee disability due to the in-service knee problems that predated the claim.  Thus, the effective date may be assigned based on the date of receipt of the claim unless a different, specific effective date provision otherwise applies.
Example 2:  A Veteran claims SC for elevated blood sugar due to possible diabetes on October 8, 2014, associated with confirmed Vietnam service.  Private treatment records are requested and received showing that his blood sugars were first slightly elevated in June 2013, and the records document continued monitoring thereafter.  A VA examination dated January 3, 2015, indicates a diagnosis of type 2 diabetes mellitus, and the physician notes that the diagnostic criteria for diabetes were first met as shown in the private treatment records on November 13, 2014, when blood sugars and other testing met the American Diabetes Association criteria for a diabetes diagnosis, as the documented symptoms prior to that time were not sufficient for a diagnosis.
Analysis:  The entitling criteria were not met as of the date of the receipt of the claim because the symptoms were not sufficient for a diagnosis of the disability at that time.  There is affirmative evidence showing that the entitling criteria (which require the presence of a chronic disability) were first met on November 13, 2014, which is later than the date of receipt of the claim.  Thus, the effective date is assigned based on the date entitlement arose since it is later than the date of claim, unless a different, specific effective date provision otherwise applies.

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:
  • A Veteran claims SC for hearing loss.  The examination report disclosed that the Veteran reported ringing of the ears during service.  The examiner diagnosed tinnitus and related it to the Veteran’s service.  In such a situation, the tinnitus claim is considered within the scope of the hearing loss claim.  If SC is otherwise warranted for tinnitus, the assignment of effective date of the grant should be guided by the date that the claim for SC for hearing loss was received.
  • A Veteran claims SC for arthritis of the knees.  The examination showed no arthritis, but chondromalacia patellae and lateral instability were diagnosed.  If SC is in order, both conditions should be considered within the scope of the same claim for the knee and the same effective date assigned.
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.
If …
Then the earliest potential effective date of entitlement to benefits is 
  • VA received communication of a claimant’s ITF between March 24, 2015, and August 5, 2015, and
  • VA subsequently receives an original FDC from the claimant within one year of the date VA received the communication of an ITF
one year prior to the date VA received the communication of an ITF.
Reference:  For more information on the applicability of PL 112-154, Section 506, to effective date assignments for FDCs, see M21-1, Part III, Subpart i, 3.B.4.b and c.
  • VA receives communication of a Veteran’s ITF within one year of the date he/she separated from service, and
  • VA subsequently receives a substantially complete application within one year of the date VA received the communication of an ITF
the day after the Veteran separated from service.

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.
Scenario
Conclusions
The potential effective date of entitlement to increased compensation is June 1, 2015, because VA received the VA Form 21-526EZ, within one year of the date it received the Veteran’s communication of an ITF.
Note:  The ITF helps identify the potential effective date but is not necessarily determinative of the outcome of effective date assignment.  All other applicable effective date regulations must be considered.  For example, application of 38 CFR 3.400(o)(2) may allow for assignment of an effective date earlier than the ITF based on treatment records showing worsening of the disability in the one year prior to receipt of the claim.
  • VA receives VA Form 21-0966from a Veteran on June 1, 2015.
  • On November 1, 2015, the Veteran begins a non-original, initial, online application for benefits through eBenefits.
  • On January 1, 2016, the Veteran completes and submits the online application.
  • Commencement of the online application process on November 1, 2015, constitutes a duplicate communication of an ITF.
  • The potential effective date of entitlement to benefits is June 1, 2015, because the Veteran completed and submitted the online application within one year of the date VA received the first communication of an ITF.
  • VA receives VA Form 21-0966 from a Veteran on March 26, 2015.  The Veteran checked the Compensation box on the form.
  • VA receives another VA Form 21-0966 from a Veteran on May 20, 2015.  The Veteran checked the Compensation box on theform.
  • VA receives a completed and signed VA Form 21-526EZ on April 8, 2016, for an increase in the evaluation of a SC back condition.
The potential effective date of entitlement to benefits is April 8, 2016, because
  • the application was not received within one year of the March 26, 2015, ITF, and
  • the VA Form 21-0966 received May 20, 2015, is a duplicatecommunication of an ITF since it is received within the active period of the already-received ITF and is for the same benefit.
The duplicate ITF has no effect on benefit entitlement.
  • A Veteran communicates an ITF for compensation to a National Call Center (NCC) on June 1, 2015.
  • On November 1, 2015, the Veteran begins an online application for SC for a back disorder through eBenefits.
  • On January 1, 2016, VA receives a VA Form 21-526EZfrom the Veteran with a non-original, initial claim for SC for aknee disorder.
  • On February 1, 2016, the Veteran completes and submits the online application for SC for a back disorder.
  • Commencement of the online application process on November 1, 2015, constitutes a duplicate (not a new and separate) communication of an ITF.
  • The potential effective date of entitlement to SC for the knee disorder is June 1, 2015, because VA received the VA Form 21-526EZ within one year of the date the Veteran contacted the NCC.
  • The potential effective date of entitlement to SC for the back disorder is February 1, 2016. (The receipt of VA Form 21-526EZ on January 1, 2016, prevents VA from considering the Veteran’s communication of an ITF when choosing an effective date for SC for the back disorder.)
  • A Veteran is honorably discharged from active duty on September 1, 2015.
  • On December 1, 2015, VA receives the Veteran’s communication of an ITF.
  • On November 1, 2016, VA receives VA Form 21-526EZfrom the Veteran with a claim for SC for a knee disorder.
The potential effective date of entitlement to SC for the knee disorder is September 2, 2015, the day following the date of discharge.
Rationale:
  • VA received the communication of an ITF within one year of the date of discharge.
  • VA received the VA Form 21-526EZ within one year of the date VA received the communication of an ITF.
  • On March 30, 2015, VA receives an ITF for compensation.
  • The Veteran subsequently mails to VA an original FDC for SC for a back disorder, using VA Form 21-526EZ.
  • VA receives the Veteran’s claim on November 1, 2015.
The potential effective date of entitlement to SC for the back disorder is March 30, 2014, because
  • VA received communication of an ITF from the Veteran between March 24, 2015, and August 5, 2015, and
  • VA subsequently received an original FDC for benefits within one year of the date it received the communication of an ITF.
  • On October 8, 2015, VA receives an ITF for compensation.
  • The in-country Vietnam Veteran subsequently mails VA an original FDC for SC for type 2 diabetes mellitus associated with exposure to Agent Orange.  Evidence shows a diagnosis of diabetes in 1999.
  • VA receives the Veteran’s claim on April 11, 2016.
The potential effective date of entitlement to SC for diabetes is October 8, 2014, because
  • VA received communication of an ITF on October 8, 2015, and
  • 38 CFR 3.114 applies to the effective date determination.
  • On January 2, 2018, the Veteran was notified of a denial of SC for peripheral neuropathy of the right lower extremity.  Evidence available at the time of the claim’s adjudication failed to confirm the existence of a clinical diagnosis.
  • On September 12, 2018, VA receives an ITF for compensation from the Veteran.
  • On February 26, 2019, VA receives a supplemental claim for SC for peripheral neuropathy of the right lower extremity from the Veteran.
  • The supplemental claim is accompanied by private medical evidence documenting a clinical diagnosis as early as December 15, 2017.
  • The ITF received on September 12, 2018, has no bearing or influence on the potential effective date of SC for peripheral neuropathy because the claim type is supplemental.
  • The previously denied claim for peripheral neuropathy is considered finally adjudicated under 38 CFR 3.160(d).
In this example, claims processors must apply the appropriate effective date rule,38 CFR 3.2500(h)(2), which directs 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.  Thus, the effective date in this example is February 26, 2019.

3.  Effective Dates for Direct and Secondary SC


Introduction


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.
  • For claims received more than one year following discharge from active duty, the general rule applies.  Thus, the effective date will be date of receipt of claim or date entitlement arose, whichever is later.
  • For claims within one year of discharge from a period of active duty, the effective date may be as early as the day following discharge.  Refer to the table below for more information on the application of this provision of38 CFR 3.400(b)(2)(i).
Step
Action
1
Is the date of receipt of the claim within one year of discharge?
  • If yes, go to Step 2.
  • If no, then apply the general rule, unless another effective date rule applies.
2
Review the character of discharge (COD) for the most recent period of service.  Refer to the table below to determine appropriate action to take based on the COD.
If the separation from service was …
Then …
under conditions other than dishonorable
go to Step 3.
dishonorable and only a single period of service was performed
dishonorable but
  • there were multiple periods of continuous service, and
  • the prior period of service was under conditions other than dishonorable
References:  For more information on
3
Determine when the disability was incurred or aggravated during the Veteran’s military service.
Did active duty service continue without a break in service from the date the claimed disability was incurred or aggravated?
  • If yes, go to Step 4.
  • If no, then apply the general rule unless another effective date rule applies.
4
Were the entitling criteria for a grant of SC met as of the day following discharge?
  • If yes, then grant SC effective the day following discharge.
  • If no, then grant SC effective the date entitlement arose.
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.

III.iv.5.C.3.b.  Example 1: Effective Date for Direct SC

A Veteran claims SC for a knee disability.
Facts:
  • The claim is received on August 11, 2011.
  • The Veteran was honorably discharged on July 15, 2010.
  • Evidence supports a grant of SC for the knee disability on the basis that a chronic knee disability was incurred during the Veteran’s period of honorable active duty service.
Analysis:  Since the claim was not received within one year of the Veteran’s release from active service, the general rule applies.  The effective date is the date or receipt of the claim or the date entitlement arose, whichever is later.  As the entitling criteria were met as of the date of receipt of the claim by virtue of the existence of a chronic disability present since its incurrence in service, the effective date is the date of receipt of the claim.

III.iv.5.C.3.c. Example 2: Effective Date for Direct SC

A Veteran claims SC for a back disability.
Facts:
  • The claim is received on October 11, 2015.
  • The Veteran has two periods of honorable active service that are non-continuous.
    • The first period of service was from December 19, 2000, to December 18, 2008.
    • The Veteran was in the Army National Guard from 2008 until present.
    • The second period of active service was a period of Title 10 service when the Veteran was deployed with his Army National Guard unit from July 22, 2014, to August 2, 2015.
  • The Veteran was diagnosed with degenerative disc disease of the thoracolumbar spine during the first period of service.  The Veteran’s back disability required no additional treatment and is not mentioned in the STRs for the second period of active service.
  • The evidence of record supports a grant of SC for degenerative disc disease on the basis that it was incurred during the first period of active service.
Analysis:  Although the claim was received within one year of the Veteran’s release from the recent period of honorable active service, since the back disability was not incurred or aggravated in the recent period of service and there was not continuous active service from the time the back disability was incurred, the effective date must be the date of receipt of the claim, October 11, 2015.

III.iv.5.C.3.d.  Claims for Compensation Received Within One Year of Dishonorable Service

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.

III.iv.5.C.3.e.  Effective Dates for Secondary SC

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.
  • The effective date for secondary SC is governed by the general rule for assignment of effective dates described in the opening paragraph of 38 CFR 3.400.
  • A claim for secondary SC is an allegation of additional disability that is proximately due to or the result of a SC disease or injury.  As an additional disability, a secondarily SC disability cannot be treated as an increased evaluation under 38 CFR 3.400(o) for effective date purposes.  An award of increased compensation does not encompass an award of secondary SC because, by definition, secondary SC requires the incurrence of an additional disability which is separately rated under the VA Schedule for Rating Disabilities.
  • For effective date purposes, a secondary disability is distinguished from and treated differently than a complication of a disease process or other issue that is considered within scope of a separately claimed disability, as discussed at M21-1, Part III, Subpart iv, 5.C.1.g and M21-1, Part III, Subpart iv, 5.C.5.e.
  • The effective date of an award of SC is not based on the date of the earliest medical evidence demonstrating a causal connection between a primary condition and another disability secondarily related to it.  The effective date of secondary SC must be based on the date that the application upon which SC was eventually awarded was filed.
References:  For more information on

III.iv.5.C.3.f.  Correlation Between Effective Date for Primary and Secondary SC Disabilities

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.
  • The duty to investigate SC for the causal disability as within scope of the claimed issue is prompted when
    • the claimed disability is shown to be secondary to the unclaimed causal disability, and
    • when the criteria under 38 CFR 3.159(c)(4) have been satisfied.
  • If the causal or primary disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disability.
  • The effective date of benefits for the causal disability is guided by the date of receipt of the claim for the secondary 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 claim is received within one year of separation from active duty, and
  • the requirements for SC are met during service, including evidence showing that the disability
    • became manifest, and
    • was incurred or aggravated during active service, and
  • there was continuous active service following the period of service on which the presumption is based.
The effective date will be the date entitlement arose when all of the following criteria are met:
  • the claim is received within one year of separation from active duty, and
  • the requirements for SC are not met during service.
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.b.  Example 1: Assigning Effective Dates for Presumptive SC

Facts:  The Veteran was discharged June 22, 2016.  He submitted a claim for SC for hypertension on May 12, 2017.  STRs show no evidence of treatment for or diagnosis of hypertension during service.  Private treatment records show that the hypertension first manifested to a compensable degree on March 19, 2017.
Analysis:  The claim for SC was received within one year of release from active duty, but the requirements for SC were not met during service.  Thus, the effective date is the date entitlement arose, which is the date hypertension was first diagnosed, March 19, 2017.

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


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:
  • After basic entitlement has been terminated, such as by severance of SC, a retroactive increase or additional benefit will not be awarded.
  • A grant of aid and attendance (A&A) or housebound benefits associated with an initial or supplemental claim for pension or compensation is regulated by 38 CFR 3.401(a).
  • Per 38 CFR 3.400(o)(2), increased compensation may be awarded on the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a complete claim or ITF is received within one year from such date.
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:
  • A complete claim or ITF must be received within one year of the date the medical records show the increase in disability occurred.
  • When applying 38 CFR 3.400(o)(2), an increase in a Veteran’s SC disability must have occurred during the one year prior to the date of the Veteran’s claim in order to receive an effective date of up to one year prior to the date of the claim. When the increased disability occurred more than one year prior to the date of receipt of the claim for increase, then the effective date will be the date of receipt of the claim.
  • The medical reports must relate to examination, hospitalization, or medical treatment of a disability for which SC has been previously established.
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:
  • the evaluation of the SC disabilities is increased such as to satisfy the criteria for IU, including
    • a single SC disability rated at 60 percent or more, or
    • multiple SC disabilities yielding a combine rating of 70 percent or more with at least one of those disabilities rated 40 percent or more, and/or
  • an inability to secure or follow a substantially gainful occupation.
Important:
  • Entitlement to IU requires that all criteria as described under 38 CFR 4.16(a) or (b) be met.  When one of the criteria has been met for an extended period of time (potentially years before the claim) and the remaining criteria arises during the one-year period prior to the date of receipt of the IU claim, consideration of an earlier effective date for IU is warranted.  Both criteria need not initially arise during the one year prior to receipt of the IU claim so long as both are met sometime prior to the effective date of the grant of entitlement to IU.
  • Entitlement to IU is a potential consideration any time an SC disability is evaluated.
    • Consequently, 38 CFR 3.400(o)(2) may be applied to the IU effective date
      • anytime an SC disability is evaluated and the outcome of the claim either grants or confirms and continues an evaluation causing the Veteran’s SC disabilities to satisfy the schedular criteria described in 38 CFR 4.16(a) for potential IU entitlement, and
      • the claim for IU is received within one year of the decision evaluating the SC disabilities such as to meet the schedular criteria.
    • This is true whether the prior evaluation decision resulted in the schedular criteria having been met
      • for the first time
      • based on a confirmed and continued evaluation, or
      • based on an increased evaluation, even when the criteria were previously first met at the time of a prior determination.
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:
  • the date on which the increased disability was first shown (up to one year prior to the date VA received the claim) per 38 CFR 3.400(o)(2), or
  • the date of receipt of the claim or the date entitlement arose, whichever is later.
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.d.  Example:   Effective Date Assigned Under 38 CFR 3.2500(h)(1)

Facts:  On March 17, 2018, a Veteran files an initial claim for SC for ischemic heart disease (IHD) based on exposure to herbicides in Vietnam.  Medical evidence of record confirms a clinical diagnosis of IHD has existed since February 2012.  VA issues a rating decision and corresponding decision notice on August 14, 2018, denying the claim because existing evidence is insufficient to concede a qualifying in-service event, including herbicide exposure.  The Veteran submits a complete request for HLR on March 1, 2019.  The higher-level reviewer assigned to the case discovers, among existing service dental records, one instance of treatment at a facility whose Army Post Office number allows a presumption of herbicide exposure.
Analysis:  SC is granted with an effective date of March 17, 2018, the date of receipt of the initial claim, because
  • all elements required to establish SC have been met, and
  • the Veteran continuously pursued the issue with the timely filing of an available decision review option.

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


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
  • serves to place a Veteran in the position he/she would have been had the VA considered the relevant service department record before the disposition of an earlier claim, which ensures that a Veteran is not denied benefits due to administrative error
  • only applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision, and
  • allows for revision of a prior claim with a potential assignment of effective date based on the date of receipt of the previously denied claim.
    • Under 38 CFR 3.156(c)(1), the effective date is the later of
      • the date entitlement arose, or
      • the date VA received the previously decided claim.
    • 38 CFR 3.156(c)(4) permits a retroactive evaluation based on new evidence from the service department clearly supporting the assignment of a specific rating over a part or the entire period of time involved, except as it may be affected by the filing date of the previously denied claim.
Notes:
  • Any other effective date provision applicable to the previous claim shall also be considered.  See 38 CFR 3.156(c)(3).
  • In Blubaugh v. McDonald, 773 F. 3d 1310 (Fed. Cir. 2014), CAVC held that VA, under the provisions of 38 CFR 3.156(c)(1), must consider an earlier effective date only if VA awards benefits resulting from reconsideration of the merits of the claim.  This applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not awarded in the previous decision.
  • As noted in 38 CFR 3.156(c)(4), any retroactive disability evaluation assigned based on the receipt of additional service records must be supported adequately by medical evidence.
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
  • in-country service in Vietnam
  • inland waterway service or docking, such as found in deck logs, ship histories, or some other acceptable documentation that now shows the ship qualifies
  • qualifying duty on military base perimeters in Thailand during the Vietnam era, as described in M21-1, Part IV, Subpart ii, 1.H.5.b, or
  • service in specific US Army units that operated along the Korean demilitarized zone from April 1968 through August 1971.
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
  • the date entitlement arose, or
  • the date VA received the previously decided claim.
 Notes:
  • The date entitlement arose may be either the
    • date the claimed disease was diagnosed (or symptoms became manifest according to medical evidence), or
    • the date the claimed presumptive disease was finalized as part of the presumptive list of herbicide exposure-related diseases in38 CFR 3.309(e).
  • Decision makers must also consider the effective date provisions of 38 CFR 3.114 and the Nehmer stipulation, when applicable.
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
  • records did not exist, or
  • the claimant failed to provide sufficient information to identify and request the records.
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.a.  Impact of Guidance Changes

Changes to laws, regulations, or policy or procedural guidance may impact the assignment of effective dates.  The outcome of an effective date determination in such situations is dependent upon the
  • nature of the change, and
  • the status of the claim.

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
  • cases involving pending or previously denied claims, and
  • original claims filed after the change in law or administrative issue.
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
  • regulation by VA, or
  • statutes (38 U.S.C.) by Congress.

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
  • on the effective date of the liberalizing law or regulation
  • on the effective date of the award, and
  • during the entire retroactive period.
Important:
  • For pension and Parents’ DIC, the entitlement factors of income (and net worth for pension) are not considered to be eligibility factors.  Eligibility factors for pension include factors such as wartime service, age 65 or disability for Veterans, and relationship to the Veteran for survivors.  Therefore, it is not necessary for a claimant’s income or net worth to have been within acceptable limits continuously from the effective date of a liberalizing law or regulation.  VA may pay pension or Parents’ DIC for all or any portion of the applicable retroactive period for which the claimant is entitled.  Partial retroactive payments during the liberalized period can be paid if net worth changes during the liberalized period that allows a partial payment or if the maximum annual pension rate (MAPR) changes during the liberalized period, which results in the income for VA purposes (IVAP) being less than the MAPR.  The MAPR can change if a dependent is added to the award or special monthly pension (SMP) is granted.  It does not include a change in medical expenses without a change in MAPR.
  • The requirements expressed in this block apply
    • equally to pending and previously denied claims, and
    • to any type of VA issue impacted by a law change, including but not limited to
      • rating issues
      • authorization issues, or
      • other benefit determinations, such as Vocational Rehabilitation.
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.
If the claim is
reviewed …
And …
Then benefits may be awarded …
on the initiative of VA
within one year from the effective date of the law or VA issue
from the effective date of the law or VA issue.
more than one year after the effective date of the law or VA issue
for a period of one year prior to the date of administrative determination of entitlement.
at the request of the claimant
received within one year from the effective date of the law or VA issue
from the effective date of the law or VA issue.
received more than one year after the effective date of the law or VA issue
for a period of one year prior to the date of receipt of the request.
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.j.  Determining Which Statutory or Regulatory Version is More Favorable

When a statute or regulation changes during the pendency of a claim to which the law is applicable, a determination must be made as to whether the new law or prior law is more favorable to the disposition of the pending claim.
The new law is more favorable if
  • it would support an allowance that the prior standard would not (such as SC, or an increased evaluation), or
  • both standards would support an allowance but the new standard would support an allowance of a greater degree (such as an increased evaluation or special monthly compensation).
The prior standard is more favorable when
  • it would support a greater allowance than the new law, or
  • it would support the same allowance; this would make it more favorable in that the allowance could typically be assigned from earlier effective date.

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
  • send the claimant a written notice of proposed adverse action, and
  • allow 60 days for the claimant to submit evidence showing why the change should not be made.
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
  • more favorable regulation to rate the disability for periods from and after the effective date of the change, and
  • prior regulation to rate the disability for earlier periods.
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.
Step
Action
1
Determine whether the intervening change is more favorable to the Veteran.  This may require application of each version of the regulation to the facts of the case unless it is clear from the face of both versions of the regulation that the change is more favorable.
If the revised criteria are
  • more favorable, proceed to Step 2, or
  • not more favorable, then evaluate the claim for increased rating under the prior version of the regulation.
2
Apply the more favorable amended regulation to rate the disability for periods from and after the effective date of the regulatory change.
3
Apply the prior regulation to rate the disability for periods preceding the effective date of the regulatory change.
References:  For more information on
  • the analysis required to determine whether revised rating schedule criteria allows for retroactive applicability, see VAOPCGCPREC 3-2000
  • evaluating disabilities following rating schedule readjustment, see M21-1, Part III, Subpart iv, 5.B.2.i and j, and
  • potential liberalization associated with the revision of the criteria for rating psychiatric disorders which became effective February 3, 1988, see VAOPGCPREC 9-1992.

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.
If the claim …
Then …
is pending at a regional office (RO), BVA, or before a court on the date a precedent decision is issued
the ruling of the court must be considered in deciding the pending claim.
If the decision is favorable, the effective date may go as far back as the date the pending claim was received unless a specific provision, law, or regulation provides for an earlier date.
is received on or after the date of issuance of the court decision which has a bearing on that claim
the claim must be decided under the provisions of the court’s ruling.
If a favorable decision is made, the effective date will be the date of receipt of the claim unless a specific provision of law or regulation provides for an earlier date.
became final prior to the date of issuance of the court decision
the prior decision is not subject to review under the provisions of the court’s ruling.
  • Decisions may not be challenged on the basis of clear and unmistakable error (CUE) based solely on the provisions of the court’s ruling.
  • A new claim must be filed on or after the date of the court’s decision to allow for consideration under the provisions of the court’s ruling.  If a favorable decision is made, the effective date will be the date of receipt of the claim unless a specific provision, law, or regulation provides for an earlier effective date.
Notes:
  • Court decisions invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior claim decisions that are now finally adjudicated under 38 CFR 3.160(d).  However, court decisions relating to pending claims may be applied retroactive to the date of the court holding.
  • VA may only stay the binding effect of a precedential decision of CAVC if it files a motion for stay with the court that rendered the decision.
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
  • provisions of 38 CFR 3.114(a) must be applied, and
  • the appropriate effective date is June 1, 1993, one year prior to date of claim.

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.
If the request for an earlier effective date…
Then …
  • alleges a CUE, and
  • specifies the factual or legal error(s) at issue
process the request in accordance withM21-1, Part III, Subpart iv, 2.B.4.
  • does not allege a CUE, or
  • alleges a CUE but does notspecify the factual or legal error(s) at issue
respond to the request in accordance with M21-1, Part I, 1.B.1.k.
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.
  • This regulation was eliminated on March 24, 2015, in association with the Standards Claims and Appeals Forms Rule.
  • However, 38 CFR 3.157 applies, with multiple revisions dating back to 1933, until its 2015 elimination.  Thus, VA or uniformed service health care facility records dating within that time period continue to be potential informal claims for increase or to reopen without regard to when those records are incorporated into a claims folder.  The correct assignment of effective dates is contingent on properly recognizing these informal claims.
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
  • reports of examination or hospitalization at a VA or uniformed services facility are considered received as of the
    • date of the outpatient or hospital examination, or
    • date of hospital admission, and
  • records showing evidence of entitlement submitted by or on behalf of a Veteran from a private physician or layman or from state or other institutions are considered received as of the date of receipt of the evidence.
The following types of informal claims may result from receipt of reports of examination or hospitalization under 38 CFR 3.157:
  • a claim for increased compensation, including when the
    • Veteran has elected to received military retired pay in lieu of compensation, or
    • SC disabilities are evaluated as non-compensable
  • a claim for increased pension benefits (including when the Veteran has elected to received military retired pay in lieu of pension), and
  • a claim to reopen pension following denial due to the reason that the disability was not permanently and totally disabling.

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).
  • In MacPhee v. Nicholson, 439 F.3d 1323 (2006), the U.S. Court of Appeals for the Federal Circuit held that although the language of 38 CFR 3.157(b)(1) refers to claims to reopen, in this case the claim to reopen is limited in scope for compensation purposes to those disabilities for which SC has already been established.  Medical reports concerning a disability for which SC has not been granted cannot be used to trigger application of 38 CFR 3.157(b)(1).
  • In Massie v. Shinseski, 724 F.3d 1325 (2013), the U.S. Court of Appeals for the Federal Circuit made the following findings:
    • A physician’s letter does not qualify as a report of examination under 38 CFR 3.157(b)(1) because it was not generated in connection with any particular VA medical examination.  The medical record in question must describe the results of a specific, identifiable VA or uniform service facility outpatient or hospital examination.
    • For 38 CFR 3.157(b)(1) to be considered an informal claim, the report of examination or hospitalization must demonstrate that the Veteran’s SC disability worsened since the time it was last evaluated for rating purposes.
  • In Munro v. Shinseki, 616 F.3d 1293 (2010), the U.S. Court of Appeals for the Federal Circuit found that 38 CFR 3.157(b) establishes that evidence such as VA medical reports be accepted as informal claims for increased compensation, not that informal claims require separate consideration from formal claims.  Furthermore, it is not necessary for VA to address every one of these informal claims separately.  The implicit denial rule may be applied to terminate the pending status of both formal and informal claims.
  • In Pacheco v. Gibson, 27 Vet.App. 21 (2014), CAVC held that a previous allowance of non-service-connected (NSC) pension cannot result in an earlier effective date under 38 CFR 3.157(b)(1) for a claim to reopen a previously denied claim for SC.  Rather, a previous allowance of NSC pension can result in an earlier effective date for an increased pension claim or a claim to reopen a pension claim previously denied because the disability was not permanently and totally disabling.
  • In VAOPGCPREC 5-2003, General Counsel found that the provision of 38 CFR 3.157(b)(1) stating that the date of admission to a uniform services hospital will be accepted as the date of receipt of a claim for increased benefits is applicable to Veterans hospitalized in private facilities at Department of Defense expense under the TRICARE program.

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:
  • There was no standard form for submission of an informal claim.
  • Upon receipt of an informal claim, if no prior formal claim had been filed, the applicant was forwarded an application for benefits.  The applicant had one year from the date the application was sent to formalize the claim.  When formalized within the one-year period, the claim was considered filed as of the date of receipt of the informal claim.
  • Informal claims for increase or reopening were accepted as claims.
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.
For more information on effective date considerations associated with claims for …
See …
arteriosclerotic manifestations granted secondary to hypertension
IHD
diabetes mellitus
complications of diabetes mellitus
TBI (including application of 38 CFR 3.114)
secondary disabilities associated with TBI
disabilities related to herbicide exposure as impacted by Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.)
additional disability or death attributable to VA care, treatment, or examination, participation in vocational rehabilitation training, or participation in compensated work therapy, as directed under 38 U.S.C. 1151
prestabilization disabilities evaluated under 38 CFR 4.28
hospitalization ratings under 38 CFR 4.29
convalescence ratings under 38 CFR 4.30
spina bifida or other covered birth defects

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
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