effective dates compensation
TRANSCRIPT
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EFFECTIVE DATES
PURPOSE
Understand the rules to insure correct payment
– Review beginning dates
– Review ending dates
Use scenarios
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EFFECTIVE DATES
DEFINITIONS – 38 CFR 3.160
Original claim. An initial formal application on a form prescribed by the Secretary.
Pending claim. An application, formal, which has not been finally adjudicated.
Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction (AOJ), the action finalized by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.
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EFFECTIVE DATES
DEFINITIONS– 38 CFR 3.160
Reopened claim. Any application for a benefit received after final disallowance of an earlier claim,
Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.
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EFFECTIVE DATES
38 CFR § 3.400 General:
Except as otherwise provided, the effective date of an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.
Unless specifically provided: on basis of facts found.
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EFFECTIVE DATES
38 CFR 3.400(b)(2)(i)
Day following separation from active service ..; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.
Separation from service…under conditions other than dishonorable
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EFFECTIVE DATES
FOUR MAIN CRITERIA
Date of receipt of claim
Date entitlement arose
Facts found
Specific provision of the law
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EFFECTIVE DATES
TYPES OF DATES
Date of rating
Date of award letter
Effective date for entitlement
Effective date for monetary benefit
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EFFECTIVE DATES
Direct service connection
Presumptive service connection
Reopened claims
Resumption of benefits
Increases
Reductions
Informal claims
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DIRECT SERVICE
CONNECTION
Scenario 1
Vet served 2-3-2005 to 2-4-2010. Claim filed 2-1-2011. SC granted for back. Effective date of service connection is?
2-5-2010
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DIRECT SERVICE
CONNECTION
Scenario 2
Vet served 2-3-2005 to 2-4-2010. Claim filed 2-7-2011. SC granted for back. Effective date of service connection is?
2-7-2011
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PRESUMPTIVE SERVICE
CONNECTION
38 CFR 3.400(b)(2)(ii)
Date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise ,
date of receipt of claim, or date entitlement arose, whichever is later.
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PRESUMPTIVE SERVICE
CONNECTION
Scenario 3
Vet separated 5-1-2010. First diagnosis of hypertension was 7-1-2010. Vet files claim on 4-25-2011. Effective date of service connection is?
7-1-2010
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PRESUMPTIVE SERVICE
CONNECTION
Scenario 4
Vet separated 5-1-2010. First diagnosis of hypertension was 7-1-2010. Vet files claim on 5-25-2011.Effective date of service connection is?
5-25-2011
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NEW & MATERIAL EVIDENCE 38 CFRr 3.156(A)
New evidence = evidence not previously submitted,
Material evidence = evidence that, by itself or when considered with previous evidence of record, relates to unestablished fact necessary to substantiate claim.
N&M not cumulative or redundant, must raise reasonable possibility in light of all the evidence of substantiating claim
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NEW & MATERIAL EVIDENCE
Shade v. Shinseki
New and material evidence is evidence that—if found credible—would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence that could lead to the granting of the claim
REOPENED CLAIM
38 CFR 3.400(q) N & M evidence other than service department records:
(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered.
(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.
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REOPENED CLAIM
Scenario 5
Vet filed a claim on 7-9-2009. Denied on 3-15-2010. Submits N&M evidence on 2-28-2011. Rating of 9-5-2011 grants SC effective what date?
7-9-2009
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REOPENED CLAIM
Scenario 6
SC denied for back on 6-25-2009. Reopened claim with N&M evidence on 5-25-2011. SC granted. Effective date of service connection is?
5-25-2011
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REOPENED CLAIM
Scenario 7
Vet separated on 5-15-2008. Files claim for a back on 4-12-2009. VA notifies him on 10-10-2009 that claim denied. Vet submits N&M evidence on 5-15-2010. Rating 11-7-2010 grants SC effective what date?
5-16-2010
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REOPENED CLAIM
Scenario 8
Vet honorably separated 6-19-2000. Filed claim for back on 10-15-2000. SC denied on 1-13- 2001.
Reopened claim on 5-25-2011 with service treatment records found at St. Louis RMC. SC granted. Effective date of service connection is?
6-20-2000 38 CFR 3.156(c)
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REOPENED CLAIM
Scenario 9
Vet honorably separated 6-19-2000. Claim filed on 2-12-2004 and denied on 12-15-2004. Reopened claim on 5-25-2011 with service treatment records found at St. Louis RMC. SC granted. Effective date of service connection is?
2-12-2004
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REOPENED CLAIM
Scenario 10
Vet honorably separated 6-19-2000. Filed claim for back on 10-15-2000. SC denied on 1-13- 2001.
Reopened claim on 5-25-2011 with service treatment records found at his Mom’s house. SC granted. Effective date of service connection is?
5-25-2011
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RESUMPTION OF BENEFITS
38 CFR 3.654(b)(1)Where Vet returns to active duty, award will be stopped the day preceding reentrance into active duty status.
38 CFR 3.654(b)(2)Payments, will be resumed effective the day following release from active duty
– if claim for recommencement of payments is received
within 1 year from the date of such release:
– otherwise payments will be resumed effective 1 year
prior to the date of receipt of a new claim.
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RESUMPTION OF BENEFITS
Scenario 11
Vet 20% for spleen removal. Re-enters active duty and benefits are stopped. Separated on 5-15-2009. Files a claim to resume 20%
On 12-1-2009. What is effective date?
5-16-2009
On 12-11-2010.What is effective date?
12-11-2009
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INCREASES
38 CFR 3.400(o)
(1) General, date of receipt of claim or date entitlement arose, whichever is later…..
(20 Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.
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INCREASES
38 CFR 3.157(b)(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services
GENERAL COUNSEL PRECEDENT OPINION ASSESSMENT, VAOPGCPREC 5-2003, September 15, 2003
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INCREASES
Scenario 12
Vet 0% for hearing loss. Files a claim for increase on 5-15-2010. VA Exam of 2-20-11 shows an increase to 10%. Effective date is?
5-15-2010
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INCREASES
Scenario 13
Vet is 10% for DM II. On 5-15-2009 PMR shows insulin required. Increased claim filed 12-14-2009. Effective date of increase is?
5-15-2009
What if date of claim was 5-17-2010?
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INCREASES
Scenario 14
Vet admitted to a hospital for a stress test for his 10% SC Ischemic heart on 7-4-2008. Test shows an increase to 60% Files a claim for increase on 9-13-2010. What is the effective date of increase if
1. It was a private hospital?
2. VAMC?
3. Military hospital?
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INCREASES
Scenario 14 Continued:
4. Admitted for testing and uses TRICARE?
5. The test was done to determine severance pay as vet was on TDRL?
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INCREASES
Scenario 14 Continued:
6. Admitted to non-VA hospital on 7-1-2008 but with VA pre-approval?
7. Admitted to non-VA hospital 6-30-2008 and notified VA on 7-6-2008 and maintenance is then authorized?
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INCREASES
Scenario 15
Veteran is SC for psoriasis 0%. On 1- 27-2010 he awakes & finds that psoriasis is covering ½ his face. He sees a MD on 2-16-2010 who confirms this. He claims an increase on 4-4-2010 & submits a 4138 from him and his wife detailing the facts. What is the effective date of increase?
1-27-2010
LIBERALIZING LEGISLATION
38 CFR 3.114
Where a monetary allowance…is awarded or increased pursuant to a liberalizing law or VA issue …… to be eligible for a retroactive payment …evidence must show that the claimant met all eligibility criteria …. on the effective date of the law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.
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LIBERALIZING LEGISLATION
38 CFR 3.114 Cont.
If a claim reviewed on the initiative of VA or the claimant within 1 year from the effective date benefits may be authorized from the effective date of the law or VA issue.
If a claim is reviewed on the initiative of VA or claimant more than 1 year after the effective date benefits may be authorized for a period of 1 year prior to the date of a determination of entitlement or date of receipt of request from the claimant.
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LIBERALIZING LEGISLATION
38CFR 3.114 Cont.
EXAMPLE - 8-31-2010 - coronary artery disease (CAD) Liberalizing issue –Agent Orange condition
If a VN vet had CAD diagnosed on 2-5-2010 what is the efective date of entitlement if claim filed
2-1-2011?
9-2-2011?
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LIBERALIZING LEGISLATION
38CFR 3.114 Cont.
EXAMPLE - 8-31-2010 - coronary artery disease (CAD) Liberalizing issue –Agent Orange condition
If a VN vet had CAD diagnosed on 2-5-2011 what is the efective date of entitlement if claim filed
March 1-2011?
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REMINDERS
Determine
date of receipt of claim
if a special provision exists
if the decision to grant or increase is based on a liberalizing law or VA issue
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REMINDERS
Determine if evidence shows a factually ascertainable
increase in disability within one year of date of receipt of claim
if an acceptable exam or hospital report may provide a basis for an earlier date of receipt of claim
if a change in the rating schedule may provide an earlier effective date of increase than the date of receipt of claim
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REDUCTION
EVALUATION
RULES
What is the 5 year rule?
What is the 10 year rule?
What is the 20 year rule?
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REDUCTION EVALUATION
Scenario 16
Vet SC 70% for PTSD. VAE of 7-5-2010 shows improvement. Notice sent 11-15-2010 notifies vet that PTSD will be reduced to 50%. Vet doesn’t respond. Rating & notice dated 2-2-2011 makes a reduction effective?
5-1-2011
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REDUCTION EVALUATION
Scenario 16 Continued
Vet receives 11-15-2010 notice & requests a hearing. Held on 4-4-2011. No evidence submitted. Rating & notice prepared 6-3-2011 formalizes the reduction to 50% effective?
9-1-2011
What if reduction letter is dated 7-2-2011?
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REDUCTION Failure to Report
Scenario 17 Vet rated 30% for psoriasis. He FTR for a 6-19-
2010 VA exam. VA notifies him on 8-12-2010 that he is being reduced to 0% effective 11-1-2010. Vet does not respond within 60 days. When is the award stopped when the VSR has the case on
1. 10-15-2010 to process?
2. 12-1-2010 to process?
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REDUCTION Failure to Report
Scenario 17 – Continued
Vet requests a hearing on 9-1-2010. Hearing held
12-15-2010. No change! Rater on 2-3-11 has case. Effective date of reduction is?
5-1-2011
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REDUCTION VA Form 21-4140
Scenario 18 Vet rated 70% for PTSD but has IU. Fails to return
VA Form 21-4140. 60 day notice dated 6-8-2010 sent to vet reducing him to 70% rate. No response. What is effective date of reduction when the VSR has the case on
1. 8-14-2010 to process?
2. 11-12-2010 to process?
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REDUCTION VA Form 21-4140
Scenario 18 – Continued
What happens when the vet timely requests a hearing?
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REMINDERS
DO
Review the proposed rating carefully.
Call the vet when a reduction is proposed
– Explain process
– Check if address correct
– Check if vet received notice
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REMINDERS
DO NOT request a hearing solely to give the client more money
DO NOT purposely delay the promulgation of the rating proposing reduction.
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INFORMAL CLAIM
Requirements
Communication or action
Intent to apply for VA benefits
Identifies the benefit sought
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INFORMAL CLAIM
Who can file an informal claim?
Claimant
Authorized representative
Member of Congress
Next of Friend …Sui Juris
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INFORMAL CLAIM
CAVEAT
Authorized representative must have a properly executed power of attorney at the time of the communication!
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EXAMPLE
On 5/15/09 you interviewed a veteran. POA completed. On 5-17-09 you filed an informal claim for compensation. VA sends a vet an application on 7-25-09.
1. Claim filed on 7-24 -10. Effective date is?
2. Claim filed on 7-27-10. Effective date is?
Same facts but vet separated on 3-15-2009.
1. Claim filed on 7-24 -10. Effective date is?
2. Claim filed on 7-27-10. Effective date is?
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INFORMAL CLAIM
What are the benefits of filing an informal claim?
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SUMMARY
Impact of correct effective dates
Covered basic effective date regulation
Reviewed common exception
Established basic parameters on review
Informal claims & their use