On August 1, 2013, a VA press release announced that a “new benefit takes effect August 6 for first-time filers.” The benefit is “up to one-year of retroactive disability benefits” for veterans who file a fully developed claim. (See the VA’s August 1, 2013, press release). It is part of a comprehensive effort to reduce the backlog. The idea is to reduce the VA’s workload, thereby making claim processing faster. Less labor means less time consumed in adjudicating a claim.
What is a Fully Developed Claim for Veterans Benefits?
A fully developed claim effectively relieves the VA of its duty under the Veterans Claims Assistance Act (VCAA). In a fully developed claim, the veteran certifies that “no additional information or evidence is available or needs to be submitted in order for the claim to be adjudicated . . . .” The claimant’s representative – which includes, under the statute, an advocate, VSO, or agent – must also submit a certification. Title 38, section 5101, United States Code, establishes these elements of a fully developed claim. It is an effort to shift some of the VA’s workload onto veterans. That characterization makes the program sound like a way for the VA to pass the proverbial buck. Another way to describe the program, however, is that it’s a legal instrument the veteran can use to eliminate a lot of bureaucratic time wasting.
How a Fully Developed Claim Can Help You
Veterans call very often explaining to our firm that the VA is asking for more information, again, after everything has been submitted again, already in triplicate. The VA is asking for the same old evidence, again. The certification under the fully developed claim program can eliminate a lot of that frustration. Any VSO, agent, or advocate worth his or her certification can assemble a routine military record. Sometimes the records are hard to secure but, in those instances, the veteran would need the VCAA. A lot of veterans should not need it. Those veterans should take advantage of minimizing their interaction with the VA bureaucracy.
The VA bureaucracy is not something to underestimate. As another advocate who practices in this area aptly put it, “no good plan survives first contact with the VA.” This advocate can be a tool to minimize the VA’s bureaucratic role. (The ironic part of this code is that advocates are specifically listed as representatives for filing new claims but, under the current regime, the VA virtually and effectively bars advocates from doing so. On the one hand, Congress is telling the VA that advocates can help reduce the backlog. On the other hand, the VA appears to be hostile to advocate representation. That, however, is a topic for another blog.)
One-Year Retroactive Disability Benefits
So, that is the idea of a “fully developed claim.” But, what is this business about up to one-year retroactive disability benefits? Public Law 113-12 (from last year) amended Title 38, Section 5110, United States Code – which is the statute governing effective dates for claims. The amendment says:
[t]he effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the receipt of the application.
There have not been any proposed regulations published to implement this, but two things are reasonably certain about the program.
First, the effective date can precede the date of the application for a claim (not a claim for an increased rating of an already service connected disability.) This is, in fact, a pretty big change in the general rule.
Second, that effective date depends on “the facts found.” The facts found probably mean the date the disability “arises.” (“Arises” is a term of art in VA compensation advocate. It means – very, very basically – the date the disability manifested itself, or – even more very simply – the date of diagnosis.) For example, a Vietnam combat veteran has trouble breathing on December 26, 2012. On January 1, 2013, he receives a diagnosis for lung cancer. On July 1, 2013, the Veteran files a fully-developed claim for lung cancer presumably caused by Agent Orange. The VA grants the claim. Under amended 38 U.S.C. 5110, the VA would – probably – fix the effective date at January 1, 2013, which is six months prior to the filing date.
In the example, the January 1, 2013, date would be “in accordance with the facts found.” The arguments would start when the veteran’s representative files a Notice of Disagreement arguing that the VA should fix the effective date on December 26, 2012. Any good representative would do this, because this earlier effective date (even if it is only four days) is “in accordance with the facts found.” To elaborate on the example, suppose the lung cancer symptoms started manifesting on July 1, 2012, but the veteran did not receive the diagnosis until January 1, 2013. These are the sorts of arguments that the VA and the Court of Appeals for Veterans Claims will need to muddle through.
Filing a Fully Developed Claim
Unfortunately, this will not directly help to solve the monumental problem of backlogged appeals. Nevertheless, veterans should take advantage of this opportunity if possible. It may prove profitable, and in the worst case the VA will reject the claim as “fully developed” and proceed in the normal course of business. If you have any question regarding your claim, contact a veterans disability advocate from our firm today.
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