The date your entitlement to VA disability arose is one of the effective date rules that can cause a lot of confusion, both inside the VA and with veterans.
This phrase comes from the VA’s general regulation on effective dates which is 38 C.F.R § 3.400 and that regulation says an effective date will be “the date of receipt of the claim or the date entitlement arose, whichever is later.” There are exceptions to that general rule on effective dates which I’m not going to get into here because I want to focus on that one phrase “the date entitlement arose.”
Remember, the effective date for a disability determines when the VA starts paying disability. It makes sense that you shouldn’t receive disability before you are actually entitled to receive disability. That is essentially what the VA means by saying your effective date can be no earlier than the date your entitlement arose. Here’s an example:
Let’s say you file a claim for hearing loss and the VA sends you out for a C&P exam and that exam shows you don’t actually have any hearing loss. And for the sake of our example, let’s say you actually don’t have hearing loss. But while you’re waiting on the VA to make a decision, your hearing gets worse, and you convince the VA to give you another hearing exam which shows that you do have compensable hearing loss. In this situation, your effective date isn’t going to be the date you filed your claim because you didn’t have any hearing loss until sometime after you filed your claim.
So what is your effective date in that situation? It’s going to be the date your entitlement arose, which is the date you can show you first had compensable hearing loss. And in this example, I’ve created, that date is going to be hard to figure out. The VA is very likely going to go with the date of that second hearing exam as the effective date. But I think that’s a mistake. And this gets to a very common mistake the VA makes usually on supplemental claims where they assign an effective date as the date of a C&P exam. When they do this, the VA is basically saying your entitlement didn’t arise until a C&P examiner said you had the disability.
Again, this is wrong. It’s pretty obvious when you think about it. Have you ever had a medical problem start when you just happen to be in your doctor’s office? It’s absurd. You go to the doctor because you already have a problem. The Court of Appeals for Veterans Claims has acknowledged this by saying: “Entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.”
Note the use of the words entitlement and arise. The Court is sending a clear message to the VA to stop messing this up and instead of focusing on the exam, look for when the condition first manifested. Let’s go back to our hearing loss example. I would argue that the effective date is whenever your hearing got worse after that first hearing exam. If you can’t fix a specific date to that it this is where lay statements from you and your family and friends can make a big difference.
I hoped that helped. As usual, if you want me to help you with your VA claim you can reach out to me through the links on this website. I’m Al Walsh, a veteran who likes to help other veterans. Thanks for watching.