VA Disability Compensation Backdating to Date of Disability

rickman

PEB Forum Veteran
#1
This sounded a bit crazy when I heard this, but I need to ask it here. I was talking with a Vietnam Vet last night who told me that if you were injured several years (or decades ago) while on Active Duty and filed a disability claim today with the VA, that claim could be backdated to the date the event occurred if there is documentation in your medical records identifying a disability. Is this true? If so, is there anything in a CFR or US Code?

The only thing I can find regarding this is from another forum site which tells me that if a member makes an informal claim that is documented or if a doctor notes a recommendation for referral for VA compensation, the claim could be backdated and compensated to that date in the record. Don't know the source but the verbiage sounds pretty close.

A "claim" is defined in VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2008). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a) (2008). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits, whether formal or informal, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992); see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (holding that VA must fully and sympathetically develop a Veteran's claim to its optimum); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that VA must "determine all potential claims raised by the evidence"). Furthermore, if VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Servello, 3 Vet. App. at 200. Once the date of claim is established, the Board must determine, based upon the evidence of record, the date that entitlement to the benefit arose, to include, if possible, the date upon which an increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2008).An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110 (b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2008).

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Any thoughts or clarification to what the Vietnam Vet has stated to me would be appreciated.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#2
This sounded a bit crazy when I heard this, but I need to ask it here. I was talking with a Vietnam Vet last night who told me that if you were injured several years (or decades ago) while on Active Duty and filed a disability claim today with the VA, that claim could be backdated to the date the event occurred if there is documentation in your medical records identifying a disability. Is this true? If so, is there anything in a CFR or US Code?
Based on the facts as stated, no. Just having a condition documented in your service records without having filed a claim won't give rise to retroactive award of benefits (with the exception of the "regular" one year period in which to file a claim after separating from service, which will relate back to the day after you leave service). You have to file a claim with the VA in order to receive benefits. (Your later points touch on informal vs. formal claims, etc., but that is a different situation than just having something documented in your records).
 

BC Douglas

Registered Member
#3
This sounded a bit crazy when I heard this, but I need to ask it here. I was talking with a Vietnam Vet last night who told me that if you were injured several years (or decades ago) while on Active Duty and filed a disability claim today with the VA, that claim could be backdated to the date the event occurred if there is documentation in your medical records identifying a disability. Is this true? If so, is there anything in a CFR or US Code?

The only thing I can find regarding this is from another forum site which tells me that if a member makes an informal claim that is documented or if a doctor notes a recommendation for referral for VA compensation, the claim could be backdated and compensated to that date in the record. Don't know the source but the verbiage sounds pretty close.

A "claim" is defined in VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2008). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a) (2008). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits, whether formal or informal, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992); see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (holding that VA must fully and sympathetically develop a Veteran's claim to its optimum); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that VA must "determine all potential claims raised by the evidence"). Furthermore, if VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Servello, 3 Vet. App. at 200. Once the date of claim is established, the Board must determine, based upon the evidence of record, the date that entitlement to the benefit arose, to include, if possible, the date upon which an increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2008).An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110 (b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2008).

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Any thoughts or clarification to what the Vietnam Vet has stated to me would be appreciated.
You will only be back payed from the first time you made a claim for the injury or whatever the problem may be. B.C. [email protected].
 
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