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