One of the most frequent questions I hear from veterans sounds something like this:
“Why did I get retroactive benefits for only a few months when I was injured (or when my disease started) years ago?”
Another similar question is “I filed my first claim 20 years ago—so when I won my case, why didn’t my benefits go back to when I filed my first claim?”
Here’s the answer.
Under the law and VA regulations, it is illegal to pay any benefits before the date you filed your claim that led to the grant of service connection.
There are a few exceptions to this rule, that allow a veteran who files a claim within a year of separation from service to receive benefits retroactively to the date after separation from service, or that allow for retroactive payments when the law changes. These really are exceptions—and 99 percent or more of cases will follow the regular rules.
As a practical matter, let me explain how this works.
Let’s say that a soldier (we’ll call him “Joe Veteran”) was in service from January 1966 to January 1969. In June 1968, Joe was loading supplies into the back of a truck when he slipped and fell, injuring his right knee. Joe was treated in service and diagnosed with a twisting injury. He was put on profile, and when he left service six months later, the knee was still painful. Joe now has been diagnosed with severe arthritis in the right knee, and might need to have surgery to replace the joint. Joe is now service-connected for his right knee, and receives a 40 percent disability.
Let’s look at how the date the claim is filed affects when benefits can be paid:
(1) Six months after leaving service, in July 1969, Joe files a claim for service connection. It takes the VA two years to process the claim, but it is granted in 1972. Because Joe filed his claim for service connection less than one year after he separated from service, Joe will be service-connected effective in January 1969, the day following separation from service. Joe’s benefits will be paid prior to the date he filed his claim.
(2) Six months after leaving service, in July 1969, Joe files a claim for service connection. This time, however, the claim for service connection is denied by the VA Regional Office (the “RO”) in 1972 because Joe doesn’t provide the RO with any evidence showing that his in-service injury caused him to have a permanent disability. Even though his knee is still painful, Joe is busy raising his new family, and working, so he moves on with life, and does not appeal. By June 2002, however, his knee is getting really painful. He goes to the doctor who X-Rays him, and learns that he may need a knee replacement in a few years. Joe decides to file a new claim in October 2002. This time, he gives the RO the X-Ray reports, and his claim for service connection is granted in a decision in January 2005. Because Joe’s claim was denied in 1972, and he did not appeal, that decision became final. Under the law, Joe’s benefits can’t be paid prior to the date he filed his claim to reopen in October 2002. This means that even though Joe’s disability has been there since service, and even though he tried to get the benefits in 1969, he can only receive benefits back to October 2002.
(3) Let’s change things around a bit. This time, when Joe gets out of service, he is too busy going to school, and raising his family, to file a claim. Not to mention that he’s not the type to complain about pain or go to the doctor. He deals with the pain in his knee for many years, but it’s so bad by June 2002, that he finally goes to the doctor. He learns that he has severe arthritis and may need to have his knee replaced. Joe’s buddy encourages him ask the VA for compensation, and he files a claim for service connection in October 2002. When he wins his claim three years later, his benefits are awarded retroactively to October 2002, not back to when he left service, like Joe hoped. The reason is that because Joe didn’t file his first claim for service connection until October 2002, it would be illegal for VA to pay him before his date of claim.
Here’s the text of the law and VA’s regulations:
38 U.S.C. § 5110(a) Unless specifically provided otherwise in this chapter [38 USCS §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(b) (1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.
38 C.F.R. § 3.400: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on 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.
38 C.F.R. § 3.400(b)(ii)(B)(2) Direct service connection (§ 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.