Using Section 3.156(c) and New Records to get an Earlier Effective Date

Posted by Gregory M. Rada | July 20, 2023 | Firm News

Introduction:

Veterans seeking disability benefits face a complex bureaucratic process. One important factor in this process is the consideration of official service department records that were not previously associated with the veteran’s claims file when the Department of Veterans Affairs (VA) first reviewed the claim. This blog post will delve into the potential implications of such circumstances on the veteran’s claim, effective dates, and how veterans can best navigate these situations.

Table of Contents:

1. What Happens When New Service Records Are Discovered?
2. Understanding the Criteria for “Relevant” Service Records
3. Example of 3.156(c) and an Earlier Effective Date
4. Conclusion

1. What Happens When New Service Records Are Discovered?

There may be instances when relevant official service department records, which were not previously in the VA claims file, become associated with the file after a claim has been finally denied. In such situations, the VA is required to reconsider the claim under 38 C.F.R. § 3.156(c). Should the veteran prove entitlement based on these new records, they may receive an effective date reflecting the date the VA first received the claim for service connection, instead of the date the second claim.

This reconsideration process is designed to rectify administrative errors and ensure that no veteran is deprived of benefits due to an oversight or a delay in obtaining official service records. It’s important to note that this process should be automatic and not hinge on the claimant’s filing of a supplemental claim.

2. Understanding the Criteria for “Relevant” Service Records

The term “relevant” in Section 3.156(c) is unambiguous and has a clear meaning. For a service record to be considered relevant, it must directly or indirectly pertain to an element of the claim that has not been established, and it should remedy a defect of a prior decision that is in dispute. This means that, if a service event has already been acknowledged by the VA, additional service records confirming this event wouldn’t be considered “relevant.” The focus has to be on adding new information that can alter the outcome of the claim.

3. Example of 3.156(c) and an Earlier Effective Date

Let’s say that a veteran makes a claim for PTSD in 1991, but VA doesn’t have the veteran’s personnel records showing they were in combat, and so the VA denies the PTSD claim because it can’t verify the veteran’s PTSD stressor.

Then, in 2019, the veteran files a claim to reopen service connection for PTSD, and this time, the VA is able to obtain their personnel records which confirm the PTSD stressor. Then, based on those “relevant” records, the VA grants service connection for PTSD.

In this situation, the effective date for service connection for PTSD should be 1991 — the date of the first claim — not 2019 when the veteran reopened the claim. Clearly, 3.156(c) can be very powerful.

4. Conclusion

Unfortunately, the VA does not always apply 3.156(c) and a veteran might not know they’re missing out on an earlier effective date. That is why it is important to hire a lawyer that is going to review every single page of the claims file to ensure no benefits are left on the table.

If you need assistance with appealing an effective date, call me today at 800-955-8596 or schedule a free consultation — I am always happy to talk.