Most veterans usually start pursuing disability benefits in the presence of strong economic incentives, such as recently losing a job, when retirement does not pay as much as expected, or when healthcare expenses become too burdensome. The danger in waiting to pursue VA Disability Benefits until it is needed is that you will not start receiving your benefits until it is already too late. The two questions most asked by veterans are:
1. How long will it take to start receiving my benefits?
2. How much back pay will I receive?
This article will attempt to answer this second question for the majority of case types.
The amount of back pay or retroactive benefits, awarded to a veteran is dependent upon that particular veteran’s “effective date.” Generally the effective date is either the date that entitlement to the benefit arose, the date the claim was filed or the date a re-open claim was filed, whichever is later. This is true for most new claims and for claims to increase the rating of an already existing service-connected disability.
Because the amount of retroactive benefits usually is determined by the date the VA received a claim, there is often a fight as to what actually constitutes a claim. The VA often contends that only a formal claim filed on the VA accepted form, the VA Form 21-526, can constitute a claim. To support this contention, the VA cites 38 USC §5101(a), which states that “[a] specific claim in the form prescribed by the Secretary…must be filed in order for benefits to be paid or furnished to any individual….” What this statute does not state is that the filing of this prescribed form is what is used to establish the effective date. The statute simply states that this form must be filed in order for benefits to be paid. In fact, there are many types of communications which qualify as “a claim” outside of the VA Form 21-526.
The US Code of Federal Regulations defines a claim as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” 38 CFR § 3.1(p). When the VA receives an informal claim, it must send out a VA Form 21-526 and, as long as the veteran returns this 21-526 within one-year of receiving it, the date the VA received the informal claim will be the effective date. The informal claim must identify the benefit sought. The courts have further determined that the veteran must describe the nature of the disability for which he is seeking benefits. This can be accomplished by either describing the body part or system that is disabled or by describing the symptoms of the disability.
There are exceptions to this general rule. One exception is that certain reports of Medical Examination or Hospitalization can count as a claim for an increase in a service-connected disability rating or as a claim to re-open a previously denied claim for service connected disability. A second exception is when a veteran files a claim for condition “A” but submits a doctor’s opinion letter that also positively opines on condition “B,” which the veteran is not claiming. In this circumstance, the VA may have to consider this a claim for both conditions “A” and “B” depending upon the wording of the actual claim letter. A third exception is when a veteran files a claim condition “A” but, unknown to the veteran, condition “A” was actually caused by condition “B” which may also be service connected. In this confusing situation, the VA must consider this a claim for both condition “A” and “B.” A fourth exception is in the case of Clear and Unmistakable Error (“CUE”). CUE is a very difficult threshold to prove – a veteran must show that there was an error of fact or law and that no reasonable mind could have denied the veteran’s claim absent this error.
Another major exception is for veterans who were exposed to Agent Orange during service in Vietnam. The following is a list of conditions and their prescribed effective dates:
Chloracne -1991/02/06; Non-Hodgkin’s Lymphoma – 1964/08/05; Porphyria Cutanea Tarda – 1994/02/03; Hodgkin’s Disease – 1994/02/03; Cancer of the Lung – 1994/06/09; Cancer of the Larynx – 1994/06/09; Cancer of the Bronchus – 1994/06/09; Cancer of the Trachea – 1994/06/09; Prostate Cancer – 1996/11/07; Early-Onset Peripheral Neuropathy – 2013/09/06; Type II Diabetes – 2001/05/08; Chronic Lymphocytic Leukemia – 2003/10/16; Primary AL Amyloidosis – 2009/05/07; Ischemic Heart Disease – 2010/08/31; Chronic B-Cell Leukemias – 2010-/08/31; and Parkinson’s Disease – 2010/08/31.
Although these and other exceptions do exist, it is important to remember that your back pay rarely predates the day a veteran files his or her claim. Because of this, it is important to file a claim as soon as you can.