Filing a 3.156(c) claim, is there a form to use?

[kanewnut]

I need to file a 3.156(c) claim. I have searched but do not see anything about a form to use. I am reluctant to file the claim without a form. I had a nightmare with the VA trying to file a CUE, which doesn't require a form.

[broncovet]

Excellent question!   But I have a few questions, first.

1.  Did your original claim get denied?  

2.  If denied, was it a VARO decision?  Or BVA?  

      There are at least 2 ways of appealing a denial at VARO WITH NEW EVIDENCE.  

       A.  Supplemental Claim Lane.   (SCL allows new evidence specifically).  Form and instructions: https://www.vba.va.gov/pubs/forms/VBA-20-0995-ARE.pdf

       B.  BVA appeal WITH NEW evidence.  Form and instructions:  https://www.va.gov/find-forms/about-form-10182/

If this was a BVA denial, its more complicated.   For BVA denials, I recommend you get an attorney to CAVC (no charge to you; EAJA pays attorney fees, but discuss this with your lawyer) .

       My advice is "probably" in most cases, skip the SCL and appeal to the Board.  You might get some results from a SCL "but only if" it involves a small amount of retro, under 20,000.  If retro potential is above 20,000, skip it and go to the BVA.  VARO reps just are not authorized to sign a document where you get a check for $500,000.  (large retro). 

VA does not admit this, but how many Vets do you know got a huge retro from the VARO decision (without an appeal, signed by a judge)?   I dont know any.   

Edited November 28, 2020 by broncovet

[brokensoldier244th]

20-0995 if its at the local level. Don't know if its higher up- I'm not part of the appeals crew that works with BVA. 

[kanewnut]

2 hours ago, broncovet said:

1.  Did your original claim get denied?

My original claim got denied in 1985. I was granted SC for low back and NSC for my neck. In 2000 I got approved for low back at 10%. I was again denied SC for neck because VA said I didn't have any STR's showing a neck issue. After sending them a copy of a copy of STR showing chronic neck issue I got 20% for neck. Since I have now learned about 3.156(c) I am sending them some records that they did not have at the time of the 1985 decision.

From M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions

 III.iv.2.B.2.d. Procedures for Rating Activity Review  

Example:  Additional service treatment records received indicate treatment from a private doctor while the Veteran was on leave during active duty. Several issues were previously denied SC in two separate rating decisions. All of these issues must now be reconsidered in a formal rating decision.

Their example describes me exactly. I was on terminal leave and worked one day in tobacco. My back hurt so bad I went to my family doctor. So I am looking at filling out the 20-0995 and making copies of the records they need and see what sort of crap they give me for this.

[Fat]

Think positive.

38 CFR 3. 156 (c) is direct and powerful.

Since you are now service connected for the neck at 20%, what about appealing the EED to the BVA.

It seems you have a good leg to stand on.

 

[Fat]

I am going to be the contrarian.

Could the VA argue they couldn't execute the "duty to assist" rule due to them having no knowledge of personal records while the military member was on leave from active duty?

Its a bonafide argument, but that card probably would have been played before they service connected the neck issue at 20%.

It seems you have a good leg to stand on regarding the EED.

[brokensoldier244th]

No, if they filed an 0995 they can submit new and relevant evidence, even that which was not part of the original claim. We have 0995 claims all the time with records that weren't included in the original evidence