Posted by Gregory M. Rada | January 20, 2015 | Disability Compensation,Legal Update
In September 2014, the Federal Circuit decided Beraud v. McDonald, carving out an exception to the general rule that a “subsequent final adjudication of a claim which is identical to a pending claim that has not been finally adjudicated terminates the pending status of the earlier claim.” Now, under Beraud, when a veteran submits evidence to the VA within the appeal period of a rating decision, the VA must make a determination as to whether the evidence constitutes “new and material evidence,” or the claim remains pending until such determination is made. Notably, the claim remains pending even if there have been subsequent final decisions on the same claim.
Mr. Beraud filed an initial application for service connection for headaches in 1985, which the VA denied. After the denial, he wrote the VA a letter indicating that he knew the location of additional service medical records. He did not appeal the denial, and the VA did not respond to his letter.
In 1989, Mr. Beraud filed to reopen his claim. The VA reopened and issued a 1990 rating decision denying service connection for headaches. The 1990 rating decision did not mention Mr. Beraud’s 1985 letter, nor did it mention the medical records that were the subject of the letter. He again asked to reopen his claim in 1992 and 2002, but the VA denied both requests because it found he had not submitted new and material evidence to justify a reopening.
In August 2004, Mr. Beraud again reopened his claim and the VA finally granted service connection with an effective date of August 2004. Mr. Beraud appealed, arguing that the effective date of his claim should actually be 1985. His reasoning was that his initial 1985 claim never became final and remained pending because the VA never determined whether the medical records Mr. Beraud referred to in his 1985 letter constituted new and material evidence under 38 C.F.R. 3.156(b). Section 3.156(b) states in pertinent part that “new and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.”
The VA disagreed and argued that even if the 1985 rating decision was not final and the initial claim had remained pending, the 1990 rating decision nevertheless terminated that pending claim. The VA cited to the Federal Circuit’s holding in Williams v. Peake, which stands for the general rule that a “subsequent final adjudication of a claim which is identical to a pending claim that has not been finally adjudicated terminates the pending status of the earlier claim.” In other words, if you have a pending claim and file an identical claim, which the VA decides on the merits, then the pending status of the first claim is terminated.
The Federal Circuit agreed with Mr. Beraud, finding that the VA had a substantive duty under 38 C.F.R. 3.156(b) to determine whether the medical records Mr. Beraud referred to in his 1985 letter constituted new and material evidence. As a result, Mr. Beraud’s 1985 initial claim remained pending all the way until 2004 when the VA granted service connection, even despite the 1990 rating decision.
A key point to notice here is that if the 1990 rating decision considered the medical records described in Mr. Beraud’s 1985 letter, Mr. Beraud may not have prevailed. The Federal Circuit put great weight on the fact that the 1990 rating decision “on the merits” was actually based on an incomplete record.
If you submitted material to the VA within 1 year of a denial of a claim, and the VA never made a determination as to whether that material was new and material evidence, then your claim may still be pending. If service connection has been granted (or is granted in the future) for that claim, then you may be entitled to an effective date equal to the date of the initial claim. Contact Attorney Rada today for a free consultation.
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