Earlier Effective Date Based on Military Records
The VA has a little known and underutilized regulation that allows Veterans to receive an effective date back to the date they originally filed a claim regardless of whether or not the appeal was active the whole time. 38 C.F.R. § 3.156(c) enables Veterans to receive an effective date back to the date they originally filed their claims if the grant is based in part on a military record that was not part of the claims file (C-file) when the claims were denied.
For example, in a recent case of mine, the Veteran had filed a claim for Achilles tendonitis back in 1996 but it was denied because there was no evidence of Achilles problems in service. He filed a Notice of Disagreement but was denied again and he appealed again and was denied. Then, he learned about the National Archives and found hospital records from an in-service treatment of Achilles tendonitis, submitted those records and his claim was granted. But guess what? Despite specifically stating in its decision that the claim was granted due to new military records being associated with the C-file, the Regional Office determined that the effective date of the claim was the date the Veteran reopened his claim when he submitted the new military records. The RO decision did not cite to or even discuss 38 C.F.R. § 3.156(c).
This case is a good example of why you need a lawyer. When the Veteran called me he was furious that he could not get an earlier effective date. He rightly believed that the VA had violated its duty to assist in 1996 because he had stated that he could not afford medical care and requested a Compensation & Pension examination to support his claim. The VA, however, failed to schedule him for an exam and denied his claim, in part, because he did not have a medical nexus opinion. After the VA finally granted his claim, the Veteran, his service officer, and his congressional representative all believed that he was entitled to an earlier effective date because the VA violated its Duty to Assist, but, unfortunately, that is not the law. Their argument failed to persuade the Decision Review Officer and the Veteran was forced to appeal his case to the Board of Veterans Affairs. Frustrated, the Veteran contacted me thinking that a lawyer could convince the Board to grant him an earlier effective date because the VA had failed to give him an examination back in 1996. After reviewing the Veteran’s DRO decision and discussing his case on the phone, it was clear that the VA had violated § 3.156(c). The Veteran was reluctant to let go of his Duty to Assist argument but after explaining the law and applying it to the facts of his case he agreed to let it go and rely on the VA’s violation of § 3.156(c).
The Veteran’s Board hearing was fast. The Veterans’ Law Judge was frustrated that the RO and DRO had failed to consider § 3.156(c) but he was also used to it because it happens a lot. After listening to my analysis of § 3.156(c) and thanking the Veteran for his service, the VLJ agreed that he was entitled to an earlier effective date. At the Law Office of Sean Kendall, we offer free case evaluations. If you your claim was granted after the VA received new evidence, send us your decision and give us a call.