38 Cfr 3.114 "overlooked Eed?"

[broncovet]

Berta and I were discussing this, and thought it should be posted that other Vets may also be entitled to an EED based on 38 CFR 3.114

http://cfr.vlex.com/vid/3-114-change-law-veterans-affairs-issue-19776160

Dont make the mistake I made earlier thinking "this only applies to children of Vietnam Vets". The regulation uses the word "OR".

This is the regulation that enables Veterans to take advantage of changing laws in their effective date.

I wish we could complile some sort of a "time chart" as to when "liberalizing laws" were passed, so we could quickly see if there is any change of regulation that would enable us to get an EED based on 38 CFR 3.114

Any ideas?

[rodin57]

It would be nice to see a simple example. (Using myself as a child of a Vietnam Vet, how could my own SC disability qualify for an earlier effective date?)

[john999]

For instance, you are retired on disability from your job ten years ago and you discuss this with a VA doctor or social worker. You file for TDIU in 2011. There is a possibility that your TDIU should have been inferred when the VA first learned you were disabled due to SC conditions when you were retired from you job ten years ago.

[broncovet]

How about this example:

TAGS : None

<b style="min-width: 0px; ">Here is the update to the new regs on PTSD<br style="min-width: 0px; ">I hope this helps with the confusion!<br style="min-width: 0px; "><br style="min-width: 0px; "><br style="min-width: 0px; ">Stressor Determinations for Post Traumatic Stress Disorder</b>

What: VA published final rules changing the requirements for verification of in-service stressors in a claim for service connection for Post Traumatic Stress Disorder (PTSD).

Effective: July 12, 2010

Who: This applies to all veterans.

Summary:

This regulatory change only impacts the evidentiary requirements for verification of an in-service stressor. A present diagnosis of PTSD AND a medical opinion linking that PTSD to an event in service is still required. What has changed is the sufficiency of the evidence needed to establish the in-service stressor.

Note: The new regulation, together with the Preamble, is attached. Cut the regulation out and paste or tape it in your copy of 38 CFR 3.304.

The Preamble offers significant insight into what VA intends by this regulatory change. For instance:

· Not just combat

“The rule has no geographic requirement and is not limited to service in a combat zone or on land. Rather, it applies to all persons who served in active military, naval, or air service, as defined in 38 U.S.C. 101(24), and were discharged or released from such service under conditions other than dishonorable.”

· Hostile or terrorist activity may occur anywhere

“The regulation is not limited to events or circumstances perpetrated by a foreign enemy.”

· Places, types, and circumstances of the veteran's service

“We note, however, that inclusion of the conjunction ``and'' in the statute and regulation means that a stressor must be consistent with all three of the enumerated criteria.”

· What is needed to qualify

“Under the rule, VA will not rely on a veteran's lay testimony alone to establish occurrence of the stressor unless the following requirements are satisfied.

1. “The veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror.

2. A VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor.

3. There must be in the record no clear and convincing evidence to the contrary, and

4. The claimed stressor must be consistent with the places, types, and circumstances of the veteran's service.

Because all of these requirements must be met for the veteran's lay testimony alone to establish the occurrence of the claimed in-service stressor, we believe the likelihood of fraud to be minimal. Finally, 38 CFR 3.327(a) requires a reexamination whenever VA determines there is a need to verify either the continued existence or the current severity of a disability.

38 CFR 3.114

This regulation may apply to those who have previously filed for service connection for PTSD and were denied for lack of a stressor.

In our view, in order for this change to apply, the veteran must have been previously diagnosed with PTSD; received an examination by a VA or contract psychiatrist or psychologist who confirmed “that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor”; that there is no clear and convincing evidence in the record contradicting the veterans statements; and, that the claimed stressor is consistent with the places, types and circumstances of the veteran’s service.

The absence of any of these facts from the record existing at the time of the earlier denial will not allow the application of 38 CFR 3.114.

This rule applies to all service connected PTSD claims or appeals that are:

· Pending before VA, or received on or after July 12, 2010;

· Pending before BVA;

· Or is pending before VA on or after July 12, 2010 because the Court of Appeals for Veterans Claims vacated and remanded a BVA decision.

Note: To protect a veteran’s date of claim, before the end of July, you should file those reopened PTSD claims where the veterans’ in-service stressors may meet the requirements of this new regulation.

[broncovet]

This Veteran was awarded an EED based upon 3.114:

http://www.va.gov/vetapp11/Files3/1127630.txt

[Berta]

THANKS- This case is a Beauty!!!!!!!!!!!!!!!!!

I couldn't get to this until today- need to print it off and save it.

Ken Carpenter oh the brief is a FABULOUS vets attorney!

[broncovet]

Berta..

I agree that this is one of Ken Carpenters best...tho he certainly has many, many wins for Vets. I do ask, tho, if you agree that 3.114 is for application NOT just to children of VN Vet? . Again, the operative word is "or". I do think 3.114 is many times interpreted to only apply to children of VN Vets and overlooked by Veterans, and the RO alike.

If this is true...that 3.114 is applicable not just to children of VN Vets, then many Veterans could benefit from this and win an EED.

Of course, I would like to figure out some sort of a chart that showed when "liberalizing" laws were passed, that could enable a Vet to win an EED.