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Svr Show Follow Up To 38 Cfr 3.156 (C)

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Berta

Question

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

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Hello Berta,

Thank you for getting back. I agree 100 percent with you on the RO situation concerning the QTC report on examinations. Yes the lawyer is aware and has filed for a copy but look how long it has been and still nothing doing. It may be to my benefit to drive to the RO which is about 4 hours away and get a copy as this is really the fastest way. But with gas as high as it is it will be a 200.00 round trip.

I sure like the idea of getting a veterans QTC reports on E benefits. Wouldn't that be easy and save alot of money and more important.....TIME.

Yes we have a decision from the QTC reports or based off that report but like you said they have it and I don't. The other problem I have is that my VA doctors really don't know what is going on and have not had the benefit of knowing what the QTC reports have in them. This brings up more problems as how can the VA or any doctor really be able to treat a Veteran properly without it. It is a bad situation ready to get worse.

It may be that the people you listed to write too should get a large volume of mail concerning these issues. After all they have been going on for a long time with nothing to remedy any of it.

Berta you wrote "as long as a Veteran gets a NOD filed in a timely fashion, a claimant should end up having enough time to rebutt ......

That is my main concern right now. Because if we get a copy the time window will be small to respond and to CORRECTLY address all of the concerns that the QTC exam addressed or failed to address.

One important thing I pointed out to my Examining Doctor. I BROUGHT THE VA PROGRESS REPORT SHOWING PULMONARY HYPERTENSION when he saw me. He said he had not seen it so it was not in the material that the VARO had sent him......HHHHmmmmmmmmm not good.

He then read it and asked me when was the report and I showed him that .

Now if he commented on that report then the VARO should have picked up on the Diagnosis of the PH and then just given the 100 percent. I am even more concerned about the report and what it says.

Anyway Berta, Thank you for that great show and the answer to my question here. It is certainly pointing out problems that Veterans should be aware of that could easily hurt their claim. Still thru it all I will ......NEVER GIVE UP. God Bless, C.C.

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