effective dates compensation

MOPH NSO Basic Training March 2014 Orlando, FL 1

EFFECTIVE DATES

COMPENSATION

Casey Matuszak


EFFECTIVE DATES

PURPOSE

Understand the rules to insure correct payment

– Review beginning dates

– Review ending dates

Use scenarios


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.


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.


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.


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


EFFECTIVE DATES

FOUR MAIN CRITERIA

Date of receipt of claim

Date entitlement arose

Facts found

Specific provision of the law


EFFECTIVE DATES

TYPES OF DATES

Date of rating

Date of award letter

Effective date for entitlement

Effective date for monetary benefit


EFFECTIVE DATES

Direct service connection

Presumptive service connection

Reopened claims

Resumption of benefits

Increases

Reductions

Informal claims


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


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


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.


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


QUESTION

Is PTSD a presumptive condition?


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


What is New & Material Evidence?


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


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.



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


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


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


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)


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


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


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.


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


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.


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


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


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?


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?


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?


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?


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.



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.

MOPH NSO Basic Training March 2014 Orlando, FL

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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?



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?

MOPH NSO Basic 2014 Orlando, FL 39


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


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


REDUCTION

EVALUATION

RULES

What is the 5 year rule?




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


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?


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?


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


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?


REDUCTION VA Form 21-4140

Scenario 18 – Continued

What happens when the vet timely requests a hearing?


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


REMINDERS

DO NOT request a hearing solely to give the client more money

DO NOT purposely delay the promulgation of the rating proposing reduction.


INFORMAL CLAIM

Requirements

Communication or action

Intent to apply for VA benefits

Identifies the benefit sought


INFORMAL CLAIM

Who can file an informal claim?

Claimant

Authorized representative

Member of Congress

Next of Friend …Sui Juris


INFORMAL CLAIM

CAVEAT

Authorized representative must have a properly executed power of attorney at the time of the communication!


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?


INFORMAL CLAIM

What are the benefits of filing an informal claim?


SUMMARY

Impact of correct effective dates

Covered basic effective date regulation

Reviewed common exception

Established basic parameters on review

Informal claims & their use


QUESTIONS?

effective dates compensation

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