The Term "when Va First Decided The Claim" 38 156C

[add55p]

Please clarify this for me.

1. initially, VA denied claim due to no service records (VA first decided the claim).

2. Resubmitted to reopen claim. VA again denied claim, but I filed notice of disagreement and sent in a couple of service treatment records that were sent to me from the national personnel records center. VA continued to deny in SOC stating that the STRs were not material. (VA Second Denial that included the STRs). Not knowing what I know now, I did not file Form 9.

3. Resubmitted to reopen using strong IMO (based on the 2 Service treatment records that were associated with the claims file after VA first decided my claim. (VA Third Denial), SOC submitted after my notice of disagreement and I quickly filed form 9. BVA Awarded claim and in the decision, specifically stated that the 2 service treated records submitted were in favor of the claim. Claim subsequently awarded, but effective date is of the third request to reopen.

This is what I see as a fact, if I am reading 38 156 © correctly:

FACT 1.VA associated with my claims relevant official service department records that existed and had not been associated with the claims file when VA first decided my claim.

FACT 2. My award was made based in part on the service treatment records that were associated with the claims file after VA First decided my claim. Per the below c.f.r. reference.

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

I have had someone tell me that since the second claim decision included the service treatment records, that the rule in 38 156 © no longer applied. However, the individual did not provide any reference to back up that statement..

Any feedback with thoughts on this would be greatly appreciated..

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[Berta]

Can you scan and post the first and second decision here as to their Evidence List, Reasons and Bases parts.

( cover c file number, name , address prior to scanning it.)?

If you were at a ratable level at time of the first decision,that might fall under 38 CFR 3.156.

Even though they had the STRs in the second decision, and still denied, that decision might contain a CUE (if at a ratable level)

Can you give us the BVA Docket and Citation number?

I am sure they owe you more some retro.

If we know more as to what those decisions say,we would know best way to get more retro.

[Gastone]

What Berta said! Throw in a claims time-line when you have an opportunity. I'm kinda lazy when it comes to reviewing old posts. Thanks

Semper Fi

Gastone

[FormerMember]

Your mistake was not to file the VA 9:

<<<<< 2. Resubmitted to reopen claim. VA again denied claim, but I filed notice of disagreement and sent in a couple of service treatment records that were sent to me from the national personnel records center. VA continued to deny in SOC stating that the STRs were not material. (VA Second Denial that included the STRs). Not knowing what I know now, I did not file Form 9.

When you failed to file the VA 9, you in essence agreed with VA's finding. That you succeeded in a later reopening will always be attributable to the IMO- not the service department records recently associated with the file. I'm not trying to throw cold water on this but that will be the scenario. Had you gone to the BVA on appeal, you might have run into good legal help who could have pointed out you need three things-disease in service, disease now and the IMO/ nexus letter. In spite of those STRs proving your case, you still needed the nexus. Your failure to appeal was the death knell. I presume some enterprising VSO told you it was futile to continue. I doubt you came to this conclusion all by yourself. I don't see where you can hang a CUE on this.

[broncovet]

This is an intersting post, with 2 of the best of the best Vets advocates (Berta and Alex) who apparently disagree, but have done so in a respectfull, cival manner. 38 CFR 3.156 would appear to "Trump" the failure to perfect the appeal with a timely filed I9 because there is no limitiation that the Veteran "reopen" during the one year appealate review period. Instead, 38 cfr 3.156 seems to be the way that Veterans can "appeal" (by "reopening") without the one year deadline because we Vets could reasonably assume VA completed their Duty to Assist and, indeed, associated the applicable evidence and service records with the claims file. (We Vets SHOULD be able to presume VA complies with their own regulations, even when they frequently do not. Often, this is what CUE's are about..that the Veteran "presumes" that VA complies with regulations, and when VA does not, that is the bases of CUE) When the VA fails to obtain and associate the applicable evidence with the Cfile, this is when Vets can use 3.156 independently of the one year appealate review period (and, I will speculate, this would also include the failure of the Veteran to timely file the I9).

It would appear that VA does get the presumptive here. That is, the VA is "presumed" to have complied fully with regulations UNTIL/UNLESS the Veteran, or his representative suceeds in rebutting this presumption of regularity. Indeed, we Veterans must rebut this presumption under the CUE standard of review that must be undebatable.

Alex, however, commands extensive case knowledge through reading hundreds of cases, so he may be aware of just such a case which addresses this. If such a case exists, which would weaken 3.156, it would seem to be very difficult to get that one past the BOD, "claimant friendly" non adversarial claims system which we Veterans call the hamster wheel of delay and denial.

For the reasons above, I would agree with Berta, but I do think the outcome will be interesting if this ever makes it to the CAVC.

Edited June 20, 2015 by broncovet

[add55p]

Berta, Gastone, Asknod, and Broncovet

The information in all of your responses are exactly the type that I was hoping for.

I believe Asknod´s response is the hurdle that I would have to overcome (When you failed to file the VA 9, you in essence agreed with VA's finding. That you succeeded in a later reopening will always be attributable to the IMO- not the service department records recently associated with the file).

While Asknod makes a very good point about not filing the VA form 9, and the reopening of the claim was attributed to the IMO. It would be great if there was some type of written VA law or court case (precedent or non precedent) that will support his reasoning. If so, please point me to the reference that specifically refutes the possibility of me being granted an earlier effective date if requested..

38 156 © is clear when it states "An award made based all or in part on the records" would lead me to believe that because the BVA mentioned the Service treatment records individually as being in favor of the claim, then the claim was not solely attributed to the IMO. The service treatment records were also reviewed and A also pointed out in there decision.

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[Guest]

2. Resubmitted to reopen claim. VA again denied claim, but I filed notice of disagreement and sent in a couple of service treatment records that were sent to me from the national personnel records center. VA continued to deny in SOC stating that the STRs were not material. (VA Second Denial that included the STRs). Not knowing what I know now, I did not file Form 9.

We must go by the basics, filing a claim under CUE a veteran loses the BOD (Benefit of Doubt) and filing a claim under 3.156 the veteran even with newly discovered records must still meet the basic criteria of having;

1. An in-service injury or disease

2. A current condition

3. A nexus that links 1. and 2. together with a solid medical rationale.

Of course we all know that VA will say that the veterans' new and material evidence did not meet the criteria until the veteran reopen his claim the third time with an IMO. VA will most likely concede that the evidence was new but was the evidence material enough in establishing a nexus with the in-service condition and the current condition. As Berta asked, is there a way to scan your rating decisions to the board? Please cover all personal information like name, claim number, social, and address. IMHO, that new IMO is what VA will fight you all the way to CAVC. VA had already denied the newly discovered records/evidence as being not material enough to warrant service connection until the veteran filed a third time with an IMO.