CUE vs 3.156

[broncovet]

Its a common question:  Should I reopen due to New and Material Evidence, 3.156, or file a CUE??   The discussion below regards optimizing your effective date, that is, getting the earliest effective date possible.   

I say the answer depends.  

1.  IF you have New "Service Records".    3.156 makes a distinction between New "service records" and new "evidence".  If you have new "service records" you should reopen due to 3.156, as that should always get you the earliest possible effective date.  Watch out for the "gotcha" in number 2 below, tho.  

(c) 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:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(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.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

 

 

2.  IF YOU HAVE NEW EVIDENCE, but they are not "service records":

    a)  IF YOU ARE ALSO IN THE "appeal period":    Rely upon 38 CFR 3.156(b) to get you your earlier effective date:

          (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision              if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original                        jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §

           20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning           of the appeal period.

    b)  IF YOU ARE NOT IN THE APPEAL PERIOD.    If you have not appealed, and your appeal period has expired, then filing a 3.156              probably wont help you.  YOu need to file a CUE in order to get an earlier effective date.  

 

        If you have no "new evidence" and you can not obtain "new evidence" (such as by obtaining your service records), then CUE is the method to obtain an earlier effective date.  

 

Edited March 28, 2016 by broncovet

[Berta]

Great info Broncovet.

To me the distinction between CUE and 3.156 is the Watergate question.

What I mean is that during the hearings over the Watergate break-in- during Pres Nixon's time in office,

A senator pushed the question...what did the President know and when did he know it?

So these types of claims can involve the same premise...what did VA know and when did they know it?

Myler had a through and through gun shot wound from service. (Myler V. Derwinski)

The regulations at the time of his initial claim clearly warranted consideration of muscular involvement in this type of injury.

VA had all of his medical records and also obviously had the existing regs at time of the initial decision.

The VA knew he had muscular involvement and knew that during adjudication of his initial claim.They failed to properly consider those regulations.

The 'what and when' Watergate scenario.. ....Myler's COVA case is here somewhere. His CUE was successful.

Under 3.156....

this case is here somewhere too...a vet was granted SC for schizophrenia but had previously been denied.

Missing service records showed up revealing that ,in an older denial, although the VA had stated they had his SMRs, they had failed to consider the fact that the vet had been treated and hospitalized for schizophrenia in service.

Schizophrenia is a psychosis that falls under the Chronic presumptives.

The vet got a very favorable EED due to the conditions of 38 CFR 3.156.

I use the Watergate question a lot when I read CUE questions here.

I also recommend using it for any Section 1151 or FTCA filings.

I sure did. In order to prove malpractice one must determine 'what' VA knew medically and when they knew it, because if it involved a potentially critical diagnosis and proper treatment, the 'when' as to when they treated the condition or when they failed to treat it, with knowledge of it, is the 'what' aspect,

and is how I won FTCA/1151 claims.

The criteria for proper VA medical care and treatment is the same medical criteria  that the "standard and usual" medical community uses.

Meaning ( and that statement should be on the charge section of every SF95)

any non VA doctor (s) would have diagnosed and treated the claimed disability more timely and/or in a far different medical way, that would not result in additional disability..

 

 

 

 

 

 

 

[broncovet]

Good analogy, Berta.  I "dissected" 3.156 and seperated its parts: 1. New service records 2. New evidence, and 3. Pending claims.  I did this because the regulation does, and treats those 3 aspects of "new evidence" very differently.

If the "new stuff" is SERVICE records, then you struck gold.  The VA has to go back to when you applied.

However, if the "new stuff" is "just" evidence and not "service records" then you need to check to see if you filed "new stuff" in the appeal period.  If you did, then you struck gold again.  

However, if you filed new stuff OUT of the appeal period, then you only get the effective date to when you filed new evidence.  That is not so good.  

A very big deal is the benefit of the doubt.  3.156 Keeps the BOD, while Cue does not.  I say "hang on" to that BOD, when possible as its often a deal maker.  Toss out BOD only when you must, such as you did not timely appeal, AND you did not file new evidence in the appeal period.  I hope this helps a Vet.  It helped me figuring it out.  

I will add that if you DID file "new evidence" in the appeal period, then you deserve a decision, which VA often does not give you.  The VA can not do a post hoc rationalization later, saying that, "Oh, no we did not reopen that claim back in 1984 because we didnt think the new evidence was probative."  No.  If that evidence does not meet the criteria for "new and material evidence" then they need to give you a decision stating why.    They can not decide that later, after another denial.  Its  a new claim, and stays pending at least until VA decides on whether the evidence was sufficient to reopen the claim or not.  

Someday, someone should do something on "subsume" decisions.  Its complicated, too.   

[broncovet]

I would also comment here, that this hits on a very big problem at VA:  When did VA get the records?  The answer is Vets dont know.  

In a real court, there is a "discovery" period, where records are revealed to both sides.  

At VA, these records are revealed ONLY to VA, and Vets must jump through hoops to get them, and, even then only gets them when VA decides to release them.  (Wrong).  

VA relies upon its "claimant friendly, non adversersarial nature" to pretend like, "oh, yea, Mr. Vet.  We got your records and we got your back.  We decided to deny you anyway, tho.  Too bad, too.  We could not find an in service event.  But thank you for your service".  

"Well, wait, VA?  Why did you not look at THESE records?  They show the in service event".  

"Well, there are an awful lot of records for a lot of Veterans, and when would we have time to read them all?  That would take too long, so its the Veterans fault for not supplying us with the page that proves his case and highlighting it in yellow for us to find."  

[Guest]

Broncovet and Berta Great post as always.  IMHO the best thing for a veteran to do if possible is to file a NOD. 38 CFR 3.156 can be tricky because the evidence does not have to be new it can just be material/pertinent.  It is very important for a veteran to read and fully understand each and every rating decision.  There are times when VA may add material/pertinent medical evidence prior to a rating decision and for some reason or another that evidence is not considered in the decision and the veteran is low balled or even denied service connection. If the evidence is not listed in the evidence section there is no way a veteran can be sure that it was used.  Even if the evidence was used the Reason and Bases Section should have some comment on this evidence to support VA decision.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  (Authority: 38 U.S.C. 501, 5103A(f), 5108).