§3.156 New And Material Evidence.

[allan]

§3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501(a))

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

Cross references: Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

Supplement Highlights references: 8(1), 47(1), 73(2).

http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKB/PART3/S3_156.DOC

Edited November 5, 2010 by allan

[Berta]

Under C, this is always good to remind veterans of this important criteria-

"Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:" etc as described in the reg-

and the good part:

"(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim."

This is how it works:

This vet was sced back to May 2000 but appealed the EED to the BVA and then to the CAVC.

The case was remanded by Joint Motion by the CAVC back to the BVA.

“CONCLUSIONS OF LAW

1. The December 1997 Board decision that denied service

connection for PTSD is final. 38 U.S.C.A. § 7104 (West

2002); 38 U.S.C.A. § 20.1100 (2008).

2. The criteria for the award of an effective date of

November 23, 1994 for service connection for PTSD have been

met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.304

(1996); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2008).

In part:

“The veteran's representative has argued that, since the

Veteran's claim of service connection for PTSD was reopened

as a result of newly received evidence in the form of

evidence submitted by the Veteran that had been received from

the NARA, such records constitute supplemental service

records, received after the Veteran's original claim was

denied and became final. Therefore, she argues, under 38

C.F.R. § 3.156©, the veteran is entitled to an effective

date for the award of service connection for PTSD as of the

date of his original claim, that being January 11, 1990. In

correspondence dated in December 2005, counsel cited to the

language accompanying the proposed amendment, now codified,

which noted that VA's current practice is to grant an earlier

effective date, commensurate with the prior claim. See 71

Fed. Reg. 35388-35390 (June 20, 2005).”

“ORDER

Entitlement to an effective of November 23, 1994 for the

grant of service connection for PTSD is granted, subject to

controlling regulations applicable to the payment of monetary

benefits.”

This case is a long read but this vet obtained 6 additional years of SC retro due to the additional records from NARA.

[Josephine]

This is exactly how I won my claim My R.O never secured my " Military Psychiatric Records".

I secured them from the St. Louis Archives some 40 years later.

My first claim was re-opened and went to BVA and was awarded to first filing date.