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

[broncovet]

3.156 C is one "notable exception" to the concept that you have to appeal within a year or try to prove Cue to get that retro for an Earlier Effective Date.

The $64,000 question, however, is precisely what is "Service Medical Records" in 3.156C? Im not sure that question has been answered by the courts. This defination makes all the difference. Is it Service (related?) medical records? In other words does a "liberal interpretation" apply here, to include anything you were treated for "originating" in service? This would suggest ALL our medical records "originate" in service to the extent that we are applying for benefits for medical conditions originating (or aggrevated by) military service. Is it "In Service medical records", that is, only the medical records you got while you were in the service? What about pre entrance and exit physicals? Are those SMR's? Technically you may not have been "in service" then. What about the year grace period, when you have a year after military exit and conditions are assumed to be caused in the military? And what about the reserves..I was required to serve in the reserves for 2 years but was inactive after service?

I would suggest that the "liberal interpretation" be applied here..in other words if these records are "service related" or, even more liberally,

MAY be service related. It would seem to me the VA is ripe to "take them to task" for this. In other words, if your records that were lost and then found might be service related, then apply for retro (usually by appeal) citing 3.156 C.

After all, aren't VAMC records "service related" at least using a liberal interpretation?

Edited April 27, 2012 by broncovet

[carlie]

3.156 C is one "notable exception" to the concept that you have to appeal within a year or try to prove Cue to get that retro for an Earlier Effective Date.

The $64,000 question, however, is precisely what is "Service Medical Records" in 3.156C? Im not sure that question has been answered by the courts. This defination makes all the difference. Is it Service (related?) medical records? In other words does a "liberal interpretation" apply here, to include anything you were treated for "originating" in service? This would suggest ALL our medical records "originate" in service to the extent that we are applying for benefits for medical conditions originating (or aggrevated by) military service. Is it "In Service medical records", that is, only the medical records you got while you were in the service? What about pre entrance and exit physicals? Are those SMR's? Technically you may not have been "in service" then. What about the year grace period, when you have a year after military exit and conditions are assumed to be caused in the military? And what about the reserves..I was required to serve in the reserves for 2 years but was inactive after service?

I would suggest that the "liberal interpretation" be applied here..in other words if these records are "service related" or, even more liberally,

MAY be service related. It would seem to me the VA is ripe to "take them to task" for this. In other words, if your records that were lost and then found might be service related, then apply for retro (usually by appeal) citing 3.156 C.

After all, aren't VAMC records "service related" at least using a liberal interpretation?

bronco

Of course veterans VAMC medical records will not be considered as lost or replaced

SMR's for purposes of 3.156c, even by way of a liberal interpretation.

In dealing with a veterans VAMC medical records I would associate 3.157 for earlier effective date purposes.

JMHO

[Jerrel]

Thank You Berta for following throu with this 38 Cfr 3.156©, it is indeed so important..

[Capt.]

Hello Berta, Carlie and Bronco and Pete.

Ok ,,,, I have a real problem starting to brew. My claims deadline is running hard for a NOD at the Regional Office and a Form 9 is filed for some other claims to Washington and a BVA. What you all have done is supplied some great insight to propel the claim under 38cfr 3.156 and nab the EED. I can see the "grey area" because the time lines are closing fast but heres what I am up against. So far there is neither hide nor hair of any of the 3 C and P exams by our wonderful QTC. Yup the lawyer has requested and we have a black hole answer. Like nearly 5-6 months and no reports. I have talked to her and expressed that we cannot establish any rebuttle because we have nothing to discuss with the VAMC or the Regional Office until we get those reports. Talk about makin some long problems and an INCOMPLETE report. I explained to the Lawyer that she can't write the NOD without the QTC reports........ALL of them. The NOD has to be able to address certain disesases that they have been awarded and that report must be used to be able to even carry on the EED to even a BVA APPEAL. I assume what you all are questioning is the fact that the 38CFR 3.156 is used in the medical records, making them"SMR"s and Medical records becoming part of the evidentiary file.

Berta posted......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”.

Ok ,,so here goes ...... this timeline is fast FAST running and we could end up out of time with the new evidence(QTC FAVORABLE EXAMS even with an Awards letter) to bring the claim up to speed and make the SMRs somewhat correct. Ok , so now the COPD /Restricted Lung disease gets rated ,,,,,BUT THEY MISSED THE PULMONARY HYPERTENSION , which is an automatic 100 percent P and T. The date of the Pulmonary Hypertension has already been established , but noone wanted to review the record . The RO took the high road and awarded part of it and that was 30 percent COPD/Restricted Lung diease award from DRO . Now like a diagnosis by 2 Cardio doctors using Heart Caths and of Pulmonary Hypertension was totally ignored. Now we are faced with an automatic 100 percent P and T for the Diagnosis with HEART CATH to June 23 , 2010.

Ok so if the EED is looked at but the award for COPD/Restricted Lung disease is an NOD filed Mar 20, 2009. The PULMONARY HYPERTENSION FIRST diagnosis was June 23 , 2010 and a follow up on a VA Cardio Doctor used Sept. 2010 as another PULMONARY HYPERTENSION DIAGNOSIS, but it was with a Electrocardio Gram which is NOT AS ACCURATE AS THE HEART CATH done in June 23,2010. Hopefully they will use the Heart Cath one . BUT NOW WE MAY HAVE no SMRs or Incomplete ones as it seems.

The Diagnostic Code 6604 is straight to the point of any lung disease that is service connected with a diagnosis of PULMONARY HYPERTENSION IS AUTOMATIC 100 PERCENT P and T.

Now the original claim for any treatment of the lungs while in service were all listed in the Service Medical reports as URIs ....upper respiratory condition , and Flu like conditions. With Documented dates in 1971 thru 1973. NO EED here??????????? but still part of the SMRs according to you all.

You see how important this discussion is. The record shows the part of the claims to be rated but the dates are not easy to dissect even with 38 cfr 3.156 because of the faulty decision or in this case NO decision on the Pulmonary Hypertension which should have been resultive and automatic. We have NO QTC evaluations reports but they were used to get part of the COPD/Restricted Lung disease award.

Now without the phyisical evidence for the QTC examinations which seemed favorable due to the awards, there is not going to be any easy NOD and one that cannot make this 38 CFR happy because of the RO dragging their feet on this. Maybe they intentionally did it so as to hope I did not spot the Pulmonary Hypertension ,so No 100 Percent P and T award.

Also wouldn't the missing QTC Lung Exams be a huge problem because it is time to turn in the arguments and timelines to be matched with Appeals and such. But how??? Incomplete records and there are INCOMPLETE SMRs with BIG Diagnosis problems which are going to HUGELY affect the SMRs, the Regional Offices and decisions THAT MUST BRING 100 percent P and T for Pulmonary Hypertension.

I sure hope someone has an answer for me and one my lawyer can use to challege and still meet the deadlines. I really don't want to run to Regional office and request a copy of the QTC examinations at over 4 hours away.

OH YES>....... I do not want another QTC examination to be requested to find out if I really have the Pulmonary Hypertension. I already have 2 diagnosis of PH done by them already.

Ok ,,,,,,, thank you all for so much particiapation in the claims and the 38CFR 3.156 problem

THANK YOU ALL.....Carlie, Berta, Bronco, Pete, This one has me not liking any of the possible remedies , but .........

As always I will NEVER GIVE UP. God Bless, C.C>

Edited April 28, 2012 by Capt.Contaminate

[Berta]

QTC exams become problematic as they become 'owned' by the VA due to the QTC contract with the VA.I read the contract to make sure I understood the relationship of QTC to VA. Some vets have requested them from their VAROs instead of the VAMC they deal with, and have received the results that way as their VAMC doesnt get the QTC results- the RO does.

The VA isn't going to attempt to make a decision ,in my opinion, without receiving the QTC reports and they will use this to shape their SOC.

As long as a NOD is filed in timely fashion, a claimant should end up having enough time to rebutt anything the VA states from the QTC exam in their initial SOC. But still it isn't fair if they cant get those results ASAP.

After the SVR show here in archives I was on with Dr. Bash, we kibitzed as to how this could be changed.

I have written to Dr. Petzel and Michael Walcoff on this matter ( heads of VHA and VBA in DC) along with excerpts from some things I discussed with Dr. Bash who is also very concerned about veterans getting better and timely access to these exam results.Results that could reveal need for immediate medical attention ,yet that sits on a desk insteads of being followed through properly.They have contact info in the letter for Dr. Bash as well as for me. We want this policy to change.

There is no reason why, since VA wants to go paperless, that these QTC results cannot be attached to the ebenefits access for veterans, as a download or pdf file the veteran can print off as soon as the RO gets the results.

6 weeks have passed since I wrote the letter to the above , and a VA employee told me yesterday to give it 2 more weeks before following up on the VACO letter,if no reply comes.I am calling VA Central Monday anyhow to see if they have received the letters.

He also told me the VA is working on a personal request I made for a few medical records, that should not take much longer to arrive.

Dr. Bash wanted me to write a second letter 2 weeks ago to VACO but I told him the response I await from VA might well add much more support for our request in QTC exam policy changes.

His concerns,as a medical doctor were stated to the VHA and VBA and my concerns as an advocate, and past VA claimant were, as well.

I am as anxious to get Dr Petzel's and Walcoff's attention on this and as Dr. Bash stated to me:

"Ok I will continue to help in any way as this is a big deal"

He is very determined to get this fixed. It IS a big deal.

It would also help if anyone else would consider writing to the VACO on this important matter.

This is our RIGHT! To have C & P results whether from a VAMC or QTC,ASAP , in order to know what to expect from the VA as to the decision, and to help shape a prior appeal if needed,on the decision.

As I mentioned before C & P results ,in a past denialI got, were manipulated and parsed and I only found this out by calling the VA C & P doctor up and raising hell......only to find out.... the VA had deliberately withheld crucial evidence from the C & P doc!

This was many years ago and now all VA claimants are aware of their right to have copies of actual C & P exams.

Maybe your lawyer would be interested in writing to them as well, to join Dr. Bash and me to get this QTC exam policy changed for the better.

I have already spoken to the legal counsel for the AL, and hesitate to take the time to contact the legal dept of the other main vet orgs but might have to eventually for their support on this issue.

This is important to any claimant, veteran or survivor.

We have the absolute right to know what the exam results are from QTC C & Ps as it is the C & P results that Control our claims ,not the raters.

The raters must use the results of these exams to support their decisions.

Robert A. Petzel, M.D. March 13, 2012

Under Secretary for Health

Veterans Administration

810 Vermont Avenue, NW

Washington, DC 20420

CC:

Mr.Michael Walcoff , Acting Under Secretary for Benefits

Veterans Administration

810 Vermont Avenue ,NW

Washington DC 20420

If anyone cares to write to them with a statement of your specific problems involving obtaining a copy of your QTC exam, It would help Dr. Bash and I advance our positions on why the QTC exams should be readily available to all VA claimants as soon as the ROs get them.

Edited April 28, 2012 by Berta

[Berta]

PS, 38 CFR 3.156 © only involves inservice military records as to their relevance to the specific claim.

There are multiple decisions at the BVA under 3.156 as John mentioned on the SVR show and those decisions reveal what records were 'newly discovered' and why they were,in many cases, probative to the final decision from the BVA.

Sorry my whole font changed when I copied something Dr Bash said to me in email.

Maybe a mod will fix it.

I re-read your post:

"We have NO QTC evaluations reports but they were used to get part of the COPD/Restricted Lung disease award."

That means the Regional office has them.

Has your lawyer or you requested copies of these reports directly from the VARO,using the rater's numeric code in the upper right hand corned of the decision - the Re: codes???????

Edited April 28, 2012 by Berta