All too often, VA makes terrible decisions that veterans, not knowing any better, fail to appeal. Barring a few exceptions, these decisions then become final after a year. However, one way to overcome this rule of finality is by establishing that VA made a clear and unmistakable error in denying the benefits sought. This recently happened to one of our clients.
In March 1973, the veteran requested service connection for a back condition. He didn’t file this claim using VA’s application form; rather, in an informal letter, he referenced that he had a back disorder and asked that VA “certify my eligibility for VA benefits.” Nonetheless, under the law at the time, the veteran’s letter constituted an informal claim for benefits. However, for unclear reasons, VA did not process it.
Nearly 40 years later, in April 2011, our client again applied for service connection for his back. And on this occasion, VA, in April 2012, granted the claim, but assigned an effective date of April 2011 – the date on which the veteran again requested service connection. Unfortunately, the veteran, whose counsel was not representing him at the time, did not realize that he could have secured a significantly earlier effective date, and, as such, missed the deadline to appeal.
Several years later, the veteran retained our firm to represent him separately. However, upon reviewing his claims file, we quickly recognized that VA did not process his original March 1973 application. As such, VA had assigned an incorrect effective date when it finally granted service connection for a back disorder in April 2012.
Unfortunately, because the veteran, not knowing any better, failed to appeal, VA’s April 2012 decision had become final, and could no longer be appealed. Our only option, therefore, was to attack the April 2012 decision collaterally by filing a motion for clear and unmistakable error. And it worked – in November 2022, the Board of Veterans’ Appeals agreed that VA had clearly and unmistakably erred in April 2012 when it assigned an effective date of only April 2011 for the award of service-connection for a back condition. The consequence of this was that Mr. Lanktree was awarded an earlier effective date of March 1973 for service connection for his back, resulting in past-due benefits for 38 years of back pay.