Because most injuries and illnesses change over time, the Veterans Administration allows Veterans to file for an increase in certain disability ratings. It is important to note that the VA will not automatically adjust a Veteran’s compensation if his or her condition worsens – the Veteran has to actively file for an increase, even if it is clear to the VA that the conditioned has worsened.
Disabilities rarely stay the same. They improve, worsen, or change altogether throughout their existence. When an injury or illness worsens, such as an arthritic knee losing flexibility or a veteran with Traumatic Brain Injury or TBI experiences greater memory loss or increased seizures, a claim for a disability rating increase should be filed. There are a couple of options on what to file. VA Form 21-526b, Veteran’s Supplemental Claim for Compensation, may be submitted as a formal claim for an increased rating claim. VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, can also be used for increasing a rating. VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, can be submitted as a formal claim for total disability rating based on individual unemployability (“TDIU”). It is import to know that a claim for TDIU does not increase the actual rating of a specific claim, rather it potentially increases the rate of pay if a condition(s) leads to the inability of a Veteran to find and maintain gainful employment. A veteran may also file a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC (“Intent to File”). Filing an Intent to File form will preserve a date to act as the effective date as long as one of the forms mentioned above is filed within one year of filing the Intent to File form.
The effective date is an important concept in all claims, especially claims to increase an existing rating. When a claim is successful, the back pay (also known as retroactive benefits) will date back to the effective date of that particular claim. Generally, the effective date is the date from which VA benefits are paid. It is the date that entitlement to the higher rating arose or the date the claim was filed, whichever one is later. The earlier the effective date, the larger the back pay. Regarding increased rating claims, the effective date can be the date the condition worsened to a level worthy of an increased rating, even if the claim was filed later, as long as the claim, or an Intent to File, is filed within one year of this worsening. The usual way to show that a conditioned has worsened is a record of hospitalization or examination, thus making the date of hospitalization or examination the date the conditioned worsened. It is possible, however, to show that the condition worsened by way of lay statements or other evidence. Below are a series of examples to illustrate the concept of effective date and back pay:
- Airman files a 21-526EZ for an increase for his knee arthritis, currently at 10%, on October 31, 2016. On October 31, 2017, the VA gives him a C&P exam (compensation and pension examination) and finds that his knee has worsened to the point that it requires a rating of 20%. He receives a rating decision on October 31, 2018, granting him a rating of 20% for his knee. If there is no other evidence for his increased disability, Mr. Airman would receive one year of back pay, since the VA would consider the examination the date that his condition worsened.
- Assume the same facts as in Example 1, but this time Mr. Airman files a medical report from a private physician along with his 21-526 EZ on October 31, 2016. This private medical report is dated that same day, October 31, 2016. This time he could receive two years of back pay because the private letter could be viewed as the date his condition worsened.
- Assume the same facts as in Example 1, but this time Mr. Airman files a medical report from a private physician along with his 21-526 EZ on October 31, 2016. This private medical report is dated October 31, 2015. This time he could receive three years of back pay because, as in Example 2, the private letter could be viewed as the date his condition worsened and it was within one year from when he filed his claim.
- Assume the same facts as in Example 1, but this time Mr. Airman files a medical report from a private physician along with his 21-526 EZ on October 31, 2016. This private medical report is dated September 30, 2015. This time he could only receive one year of back pay because the private letter could be viewed as the date his condition worsened but he waited longer than one year to file – so he is stuck with the date of the examination or the date he filed, whichever comes later.
- Assume the same facts as in Example 1, but this time Mr. Airman files an Intent to File on October 15, 2016, and a medical report from a private physician along with his 21-526 EZ on October 31, 2016. As with Example 4, this private medical report is dated September 30, 2015. This time he could receive three years and one month of back pay because he filed his Intent to File within one year of the private medical report and he filed his claim within one year of his Intent to File.
As stated above, lay statements can be used as evidence of a worsening condition. The Veteran can submit a statement from a co-worker stating that he noticed issues with the Veteran’s knee getting significantly worse. If the Veteran can show that the lay statement illustrates that his condition was bad enough to warrant a higher rating, the lay statement may be able to serve as the new effective date for the claim.
More successful generally than lay statements are medical statements from the Veteran’s treating physician/mental health provider or from a private healthcare provider hired to provide an independent medical opinion (“IMO”). It is important that the Veteran or his or her representative provide any healthcare provider with a copy of the pertinent regulations and rating chart for the specific illness or injury so the provider can use the appropriate language to express the Veteran’s current limitations.
The VA can increase a rating in stages, known as a “staged rating.” This means that there are distinct discernable periods of different symptomology that warrant different ratings. An example of this could be that Mr. Airman filed his claim on October 31, 2015, had a C&P exam on December 15, 2016, and another C&P examination on December 15, 2017. In the VA’s rating decision, dated January 25, 2018, it can assign a rating of 20% effective on December 2016, and a 30% rating effective for December 2017.