ptsd Svr Show Follow Up To 38 Cfr 3.156 (C)

[Berta]

We briefly discussed 38 CFR 3.156 on last night's SVR show.

38 C.F.R. § 3.156© provides that “if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back to filing of the original claim”.

This can become a powerful tool for any vet who querstions their EED.

As I mentioned at SVR I would give some examples of how this important regulation works as to the significance of part 'C' of 3.156:

"As service records which were not of record at the time of the

November 1995 rating decision were, at least in part, the basis

of the award of service connection for PTSD in the February 2004

rating decision, the governing regulation makes clear that the

award of service connection should be effective on the date

entitlement arose or on the date VA received the previously

decided claim, whichever is later. 38 C.F.R. § 3.156©.

For all the foregoing reasons, the Board concludes that an

effective date of September 27, 1995, but no earlier, for the

award of service connection for PTSD, is warranted."

15 years more retro

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/files3/1026694.txt

The following case the veteran was diagnosed with PTSD from a personal assault in service. She successfully received a better EED at the VARO level under 38 CFR 3.156 © but appealed that EED to the VA and succeeded:

"Service medical records dated in November 1989, and

received by the RO in May 2003, document that the veteran

reported a history of depression, frequent trouble sleeping,

and nervousness prior to discharge from service. Military

personnel records in 1988 and 1989 reflect poor performance

reviews.

Subsequently, in a rating action of April 2004, the RO

assigned an effective date of May 9, 2003, for the grant of

service connection for PTSD; the RO granted service

connection for PTSD based in part on the new service medical

records.

CONCLUSION OF LAW

The criteria for the assignment of an effective date of

December 1, 1989, for the grant of service connection for

PTSD have been met. 38 U.S.C.A. § 5110 (West 2002); 38

C.F.R. § 3.400(q) (2) (2007); 38 C.F.R. § 3.156© (as

amended, effective October 6, 2006).

ORDER

An effective date of December 1, 1989 for the grant of

service connection for PTSD is granted."

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp07/Files4/0732603.txt

Many years more retro because the veteran was right in appealing the initial EED.

Also this summation of Mayhue by Veteranslaw.com might help someone too:as every advocate often needs to consider the ramifications of a potential 38 CFR 3.156© possibility.

US CAVC decision:

“ Mayhue v. Shinseki, 24 Vet.App. 273 (2011) (Mayhue clarifies two important principles: 1) To verify alleged stressors in PTSD claims, the VA must undertake its duty to assist. For example, the VA frequently asks the veteran to provide details of the claimed in-service stressors within a three-month period; Mayhue requires the VA to look at the claims file to see if this information already exists in the veteran’s claims file rather place the burden on the veteran to recall 40-year old events relating to the Vietnam Conflict, and 2) if a veteran requests a TDIU rating or submits evidence of unemployability, while the underlying claim is pending, the VA must consider all the evidence dating back to the filing of the underlying claim in assigning an effective date for a TDIU rating); see also Shipley v. Shinseki, 24 Vet.App. 458 (2011).

1. 
   Note: Be on the look out for the potential applicability of 38 C.F.R. § 3.156© which provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back to filing of the original claim). “
   

http://www.veteranslaw.com/content/law-update

[Berta]

"could this mean if I had an in service accident and or injury, does that mean that the compensation should be the date that the accident happened?"

Compensation is based on the date of the claim.

If filed within one year of discharge, the EED is the day after discharge.

In some case, explained here under a search, a SSDI award for a 100% SC decision,can have a favorable one year extra retro amount,depending on other factors.

38 CFR 3.156 claims can also generate favorable EEDs as well as CUE claims.

Info available here on all above,under a hadit search.

 

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[broncovet]

Don't overlook "Plan B" which is, in this case 38 CFR 3.156 B.  If the records overlooked are not "Service REcords", but are just (post service) records, then 3.156 B is your gem:   

3.156 B allows the same effective date as 3.156 C  AS LONG AS you submit the "new evidence" on a pending claim, and this includes appeals:

Quote

(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.

 

[broncovet]

Correct.  As it explains in 3.156 b and c, the Va should reopen the claim if you submitted new and material evidence.  You dont need a cue, and you need not meet the cue standard of review.  

If VA has "not" reopened the claim, when you submitted new evidence, then request that it be reopened in writing.  

The VA "can" decline to reopen, and issue a decision that the evidence you submitted is not "new" or "material".  If they do that, then they should issue a decision which you can appeal.  

Often, what happens is they delay.  Sometimes for decades.  Its very tough to file a nod when va never issues a decision, which is what they did to me.  

Sometimes it may take a writ of mandamus to correct this error.  

[broncovet]

Werdich1

     Welcome to hadit.  When you ask a question, please click "start a new topic", rather than "reply" to someone elses post.  We call that "hijacking" a post.  You see, another Vet asks a question and a discussion of his question follows.  When you ask a new question, in that thread, then no one knows which person you are responding to and everyone is confused.  To prevent this, we ask that you ask your questions by "starting a new topic".  

    I answered your question because I saw that you are new and unfamiliar with hadit policies.  Its ok, just in the future just "start new topic".  If you ask your question again, by starting a new topic, you will likely get more answers, and often better answers.  

    Thank you for your participation at hadit.  More importantly, thank you for your service.  

[Pete53]

For many of us who waited years for VA to grant and than grant a claim with a bad effective date I have a question. As we all know often times the VA would check Social Security records to make sure we were not earning and getting benefits for Medical that we did not deserve would these annual checks qualify as notice and how could we find through FOIA where they did this. I know they did this to me for several years until I got 50% and perhaps after this.

[carlie]

Berta,

Man do I ever like reading claims that retro back 10 to 15 years and more.

Finally some validation and correct benefits provided.

3.156 c - is a real jewel for vets !

One of my personal favorites.