Is the effective date for your VA disability rating correct?
Recently one of our clients, a Southern veteran who suffers from Post-Traumatic Stress Disorder, was awarded, by a VA regional office, approximately a year and a half of retroactive benefits based on a 70% rating for PTSD and an award for unemployability, which affords a 100% rating. The veteran has a wife and three children and direly needed this retroactive award, and an increased monthly disability check, to support himself and his family. Depressive disorder and service-related substance abuse unfortunately have eradicated the veteran’s ability to obtain or maintain gainful employment.
In discussing the aforementioned VA decision with the veteran, it became obvious that he is entitled to a much earlier effective date than a year and a half ago. The veteran filed his original claim for Post-Traumatic Stress Disorder in April of 2010, which obviously makes it imperative for him to appeal the effective date assigned, as he was seriously disabled when he filed his original claim and the basic standard for a retroactive award is that the effective date is the date a veteran filed his or her original claim.
However, a crucial, and unfortunately often overlooked, rule applies in this veteran’s case. Under CFR §3.400 (b) (2) (i), the proper effective date for a retroactive award is “Date entitlement arose, if claim is received within one year after separation from active duty.”
As the veteran in question was separated from service in November 2009 under conditions other than dishonorable, he thus filed his claim only five months after separation and is entitled to an effective date of November 2009, not the date he filed his claim. Our office immediately filed an appeal on the veteran’s behalf and will ensure that the proper effective date, which in this case would mean a lump-sum payment for four years of retroactive benefits, is awarded.
One of the reasons it is important to contact the office of an experienced veterans’ attorney is so that easily overlooked rules such as §3.400 (b) (2) (i) are not ignored, and the proper effective date is fought for on appeal. If you have a pending appeal at the VA or Court of Appeals for Veterans’ Claims, or want to file an appeal, give the office of Attorney Sean Kendall a call today.
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