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..

Add

[Gastone]

Add: When & what SCs % were you awarded. Any particular reason you didn't keep your original claim alive with a BVA Hearing request? Doesn't affect you now but might help a New Vet understand the Appeals pitfalls associated with different decisions they might make. Were you initially represented by a VSO?

Semper Fi

Gastone

[FormerMember]

Here's the problem. The records you hoped to classify under 3.156(c ) are now no longer new and material evidence. You filed them and they denied. Your failure to appeal sealed the claim's future dependence on those records. Reopening it with the same old STRs and attempting to characterize them as " new service dept. records which were not part of the file and had never seen the light of day before" won't work this time out because they have now been associated with the c file. You just didn't pitch a bitch and throw down back then. You get one shot at this each time with 156(c ) records. This would only be applicable if you had appealed.

You said you filed first and they denied. Okay. Strike one. Now we move to Phase two with 3.156 (c ). You reopened with the 1.56(c ) records and they denied again. But you never appealed. Claim dead. Strike two. STRs are now part of the c file.

Phase three -you reopen yet again. This time, in order to benefit from 156(c ), you'd need to produce yet even more probative records that meet the same 156 (c ) standard:

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,

VA would need to receive or associate more new relevant service department records with your c file in order to reconsider this claim under 3.156(c ). Each time you reopen, you have to bring NM&E to the table. In the last reopen instance, you brought the old records in but lost and failed to appeal. You are starting over but the STRs you introduced previously exist and now have already been associated with the claims file. You cannot lean on 156© now because they are a part of the c file.

I didn't make the rules. I just interpret them. CUE won't work because a difference of opinion on how the previous evidence was decided won't fly as a reason. No laws or statutes were violated. You had the right to appeal but you chose not to. The adjudicator had all the same evidence (but no IMO) before him in the last reopen. Without the IMO/nexus letter, you lost even though the old STRs were pertinent and on point. Unless the STRs definitively stood alone without a IMO (say you were clobbered by a 60mm mortar and you got a Purple Heart for it), your denial must stand as is. Sucks, huh? There's a lot of 3.156(c ) case law but none can cover the exigencies of this one. Your failure to appeal put a fork in it.

[Fat]

Great topic.

Veterans have to keep all information relevant by keeping the appeal ongoing.

Remember the regional office sometimes overlooks pertinent evidence.

Allowing the appeal to stop kills any relevant information previously submitted to the regional office.

New and Material Evidence is hard to come by and previously submitted evidence might be correct in determining service connection.

The regional office makes mistakes; however the BVA applies the law based on your evidence.

[broncovet]

You said you got a SOC, but if you sent in MORE stuff, you are entitled to an SSOC, Supplemental Statement of Case. If VA failed to send you the required SSOC, then the claim should still be pending, and not final. So, after you complain, win a remand, and VA gives you a SSOC, then you can file your I9. You I9 should be "tolled" by VA failing to file an SSOC.

You could try skipping the remand, and just simply send in the I9, alleging the VA failed to file the applicable SSOC.

What do you think, Berta and Alex?

If I recall, it was Alex who alleged the VA failed to file the required SSOC, but Im not sure if that was relevant or not in the outcome of Alex's claim (appeal).

Edited June 20, 2015 by broncovet