38 U.S.C. § 5110

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 5110 - Effective dates of awards

(a)

(1) Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, 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.

(2) For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A) A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C) A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans' Appeals issues a decision.

(E) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3) Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans' Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(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.

(2)

(A) The 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 date of receipt of the application.

(B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C) This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3) The effective date of an award of increased compensation 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.

(4)

(A) The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B) A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c) The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d) The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1) Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child's entitlement arose if application therefor is received within one year from such date.

(2) In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f) An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g) Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h) Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i) Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j) Where a report or a finding of death of any person in the active military, naval, air, or space service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k) The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l) The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child's marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m) Repealed. Pub. L. 103-446, title XII, §1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n) The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

38 U.S.C. § 5110

Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1226, §3010; Pub. L. 87-674, §3, Sept. 19, 1962, 76 Stat. 558; Pub. L. 87-825, §1, Oct. 15, 1962, 76 Stat. 948; Pub. L. 91-376, §7, Aug. 12, 1970, 84 Stat. 790; Pub. L. 91-584, §13, Dec. 24, 1970, 84 Stat. 1578; Pub. L. 93-177, §6(a), Dec. 6, 1973, 87 Stat. 696; Pub. L. 93-527, §9(b), Dec. 21, 1974, 88 Stat. 1705; Pub. L. 94-71, title I, §104, Aug. 5, 1975, 89 Stat. 396; Pub. L. 97-66, title II, §204(b), Oct. 17, 1981, 95 Stat. 1029; Pub. L. 98-160, title VII, §703(1), Nov. 21, 1983, 97 Stat. 1010; Pub. L. 98-223, title II, §213(3), Mar. 2, 1984, 98 Stat. 46; Pub. L. 98-369, div. B, title V, §2501(a), July 18, 1984, 98 Stat. 1116; Pub. L. 99-576, title VII, §701(63), Oct. 28, 1986, 100 Stat. 3296; renumbered §5110 and amended Pub. L. 102-40, title IV, §402(b)(1), (d) (1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102-83, §§4(a)(2)(A)(vi), (b) (4)(B), 5(c)(1), Aug. 6, 1991, 105 Stat. 403, 405, 406; Pub. L. 103-446, title XII, §1201(i)(8), Nov. 2, 1994, 108 Stat. 4688; Pub. L. 108-454, title III, §305, Dec. 10, 2004, 118 Stat. 3611; Pub. L. 112-154, title V, §506, Aug. 6, 2012, 126 Stat. 1193; Pub. L. 115-55, §2(l), Aug. 23, 2017, 131 Stat. 1110; Pub. L. 116-283, div. A, title IX, §926(a)(52), Jan. 1, 2021, 134 Stat. 3830.

EDITORIAL NOTES

REFERENCES IN TEXTThe date of the enactment of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, referred to in subsec. (b)(2)(C), is the date of enactment of Pub. L. 112-154 which was approved Aug. 6, 2012.

AMENDMENTS2021-Subsec. (j). Pub. L. 116-283 substituted "air, or space service" for "or air service". 2017-Subsec. (a). Pub. L. 115-55, §2(l)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "Unless specifically provided otherwise in this chapter, 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." Subsec. (i). Pub. L. 115-55, §2(l)(2), substituted "readjudicated" for "reopened", "relevant" for "material", and "readjudication" for "reopening".2012-Subsec. (b)(2) to (4). Pub. L. 112-154 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.2004-Subsec. (d). Pub. L. 108-454 struck out par. (1) designation after subsec. (d) designation, substituted "death compensation, dependency and indemnity compensation, or death pension" for "death compensation or dependency and indemnity compensation", and struck out par.(2) which read as follows: "The effective date of an award of death pension for which application is received within 45 days from the date of death shall be the first day of the month in which the death occurred."1994-Subsec. (m). Pub. L. 103-446 struck out subsec. (m) which read as follows: "The effective date of an award of benefits to a surviving spouse based upon termination of actions described in section 103(d)(3) of this title shall not be earlier than the date of receipt of application therefor filed after termination of such actions and after December 31, 1970."1991- Pub. L. 102-40, §402(b)(1), renumbered section 3010 of this title as this section. Subsec. (c). Pub. L. 102-83, §5(c)(1), substituted "1151" for "351".Subsec. (e)(2). Pub. L. 102-83, §5(c)(1), substituted "1311(b)" for "411(b)".Subsec. (g). Pub. L. 102-40, §402(d)(1), substituted "5101" for "3001". Subsec. (j). Pub. L. 102-83, §4(b)(4)(B), substituted "that Secretary" for "the Secretary" after "month fixed by". Subsec. (n). Pub. L. 102-83, §4(a)(2)(A)(vi), substituted "Secretary" for "Veterans' Administration". 1986-Subsec. (b)(1). Pub. L. 99-576 substituted "the veteran's" for "his". 1984-Subsec. (b)(3)(A). Pub. L. 98-369, §2501(a)(1), designated existing provisions as subpar. (A), inserted "described in subparagraph (B) of this paragraph" after "to a veteran", substituted "the veteran applies for a retroactive award" for "an application therefor is received", and added subpar. (B). Subsec. (d). Pub. L. 98-369, §2501(a)(2), designated existing provisions as par. (1), substituted "dependency and indemnity compensation for which application is received" for ",dependency and indemnity compensation, or death pension, where application is received", and added par. (2).Subsec. (m). Pub. L. 98-223 substituted "section" for "subsection". 1983-Subsecs. (k) to (m). Pub. L. 98-160 substituted "surviving spouse" for "widow" wherever appearing. 1981-Subsec. (e). Pub. L. 97-66 designated existing provisions as par. (1), substituted "Except as provided in paragraph (2) of this subsection, the" for "The", and added par. (2). 1975-Subsec. (b)(2), (3). Pub. L. 94-71 added par. (2) and redesignated former par. (2) as (3). 1974-Subsec. (l). Pub. L. 93-527 inserted provisions relating to an award or increase of benefits based on recognition of a child upon termination of the child's marriage by death or divorce. 1973-Subsec. (b). Pub. L. 93-177 designated existing provisions as par. (1) and added par. (2). 1970-Subsecs. (l), (m). Pub. L. 91-376 added subsecs. (l) and (m).Subsec. (n). Pub. L. 91-584 added subsec. (n).1962-Subsec. (a). Pub. L. 87-825 inserted "based on an original claim, a claim reopened after final adjudication, or a claim for increase".Subsec. (c). Pub. L. 87-825 added subsec. (c). Former subsec. (c) redesignated (d).Subsec. (d). Pub. L. 87-825 redesignated former subsec. (c) as (d) and substituted first day of month in which the death occurred, for the day after the day of death, as the effective date. Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 87-825 redesignated former subsec. (d) as (e), substituted "first day of the month" for "date", and struck out "the entitlement arose" after "from such date." Former subsec. (e) redesignated (j).Subsec. (f). Pub. L. 87-825 added subsec. (f). A prior subsec. (f) added by Pub. L. 87-674 was redesignated (k) by Pub. L. 87-825.Subsecs. (g) to (i). Pub. L. 87-825 added subsecs. (g) to (i).Subsec. (j). Pub. L. 87-825 redesignated former subsec. (e) as (j), and substituted "first day of the month" for "day after the date", and "month of death" for "date of death".Subsec. (k). Pub. L. 87-825 redesignated former subsec. (f), added by Pub. L. 87-674 as (k).

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115-55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115-55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115-55 set out as a note under section 101 of this title, and bracketed note thereunder.

EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98-369, div. B, title V, §2501(b), July 18, 1984, 98 Stat. 1117, provided that: "The amendments made by subsection (a)(1) [amending this section] and the provisions of paragraph (2) of section 3010(d) [now 5110(d)] of title 38, United States Code, as added by subsection (a)(2), shall take effect with respect to applications that are first received after September 30, 1984, for benefits under chapter 15 of title 38, United States Code."

EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97-66 effective Oct. 1, 1981, see section 701(a) of Pub. L. 97-66 set out as a note under section 1114 of this title.

EFFECTIVE DATE OF 1975 AMENDMENT Amendment by Pub. L. 94-71 effective Aug. 1, 1975, see section 301 of Pub. L. 94-71 set out as a note under section 1114 of this title.

EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93-527 effective Jan. 1, 1975, see section 10 of Pub. L. 93-527 set out as a note under section 1521 of this title.

EFFECTIVE DATE OF 1973 AMENDMENT Pub. L. 93-177, §6(b), Dec. 6, 1973, 87 Stat. 696, provided that: "Subsection (a) of this section [amending this section] shall apply to applications filed after its effective date [Jan. 1, 1974], but in no event shall an award made thereunder be effective prior to such effective date."

EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-376 effective Jan. 1, 1971, see section 9 of Pub. L. 91-376 set out as a note under section 1114 of this title.

EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87-825 effective first day of second calendar month which begins after Oct. 15, 1962, see section 7 of Pub. L. 87-825 set out as a note under section 110 of this title.

claimant

The term "claimant" means any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.

notice

The term "notice" means a communication issued through means (including electronic means) prescribed by the Secretary.