DEPARTMENT OF VETERANS AFFAIRS
                                                             Veterans Benefits Administration
                                                                    Washington, D.C. 20420

March 19, 2020

Executive Director (00/21C)                                                                                                      In Reply Refer To:

All VBA Regional Offices and Centers                                                                                       Policy Letter 20-01

Subject: Effective Date Provisions for Supplemental Claims for Compensation and Pension Claims Filed Within a Year of a Decision from the United States Court of Appeals for the Federal Circuit or the Supreme Court of the United States.

Purpose 

This letter is to inform regional offices (ROs) that a supplemental claim filed within one­ year of a United States Court of Appeals for the Federal Circuit (Federal Circuit) or Supreme Court of the United States (Supreme Court) decision-is considered a continuously pursued claim and can be afforded the effective date protections outlined in 38 United States Code (U.S.C.) section 5110 and 38 Code of Federal Regulations (CFR) 3.2500(h)(1).

Background 

The Veteran Appeals Improvement and Modernization Act of 2017 (AMA), overhauled VA’s appeals process and provided Veterans, their families, and their survivors with increased choice in handling disagreements with VA’s decisions. The AMA also included safeguards to ensure claimants receive the earliest effective date possible for their claims. Among those protections, 38 U.S.C. 5110 was amended to allow an effective date of an award to be as early as “the filing of the initial application for a benefit if the claim is continuously pursued by filing… 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.” VA further delineated these effective date protections for continuously pursued issues in 38 CFR 3.2500(c) and 38 CFR 3.2500(h)(1).

However, following a Court of Appeals for Veterans Claims (CAVC) decision, claimants can appeal a CAVC decision to the Federal Circuit. Moreover, following a Federal Circuit determination, claimants may request certiorari from the Supreme Court.

While the effective date protections afforded in the AMA did not explicitly extend protections to supplemental claims filed following decisions from the Federal Circuit or the Supreme Court, the Veterans Benefits Administration made the policy determination to extend these protections liberally. VA will construe the appeal to the CAVC to continue through the completion of any further judicial review of that same appeal for continuous pursuit purposes. As such, similar to CAVC decisions, valid supplemental claims for the same or similar benefit, filed within one year of either a Federal Circuit or Supreme Court decision, are considered continuously pursued. Furthermore, a valid supplemental claim timely filed after a Federal Circuit or Supreme Court decision, must be afforded the effective date considerations noted in 38 CFR 3.2500(c) and 38 CFR 3.2500(h)(1 ).

Guidance

Effective immediately, claims adjudicators must consider supplemental claims for compensation and pension benefits filed within one-year of a Federal Circuit or Supreme Court decision as continuously pursued claims and apply the provisions of 38 CFR 3.2500(h)(1) when adjudicating the claim.

Questions

Questions relating to Compensation Service benefits can be directed to the Policy corporate mailbox VAVBAWAS/CO/211 Policy. Questions relating to Pension and Fiduciary Service benefits can be directed to the Policy and Procedures corporate mailbox VAVBAWAS/CO/P&F POL & PROC.

       /S/

Beth Murphy
Executive Director
Compensation Service

Ronald Burke
Executive Director
Pension and Fiduciary Service

David McLenachen
Executive Director
Appeals Management Office