CAVC–Vigil v.Peake(2008) re:38 CFR § 3.156(c)


 vetcourtappealspromoMost Vets have been told that they cannot reopen or revisit old claims that were unappealed. This is true-unless the VARO committed some grave procedural error and did not follow the letter of the law. Additionally, if there were files or records that were available to the VA that were never looked at while making the decision, that too, would be grounds for CUE(clear and unmistakable error). Winning a CUE claim is really difficult as there are many rules and regulations affecting it that are too numerous to mention here. If anyone is terribly interested in it, I will send you to the site that informs you of what is required. There are also several good CAVC decisions too that are illuminating to see how the Court actually rules on these cases.

The purpose of this message, however,  is a different avenue for attacking the finality of a prior, unappealed decision at the VARO or BVA level. The controlling regulation is 38 C.F.R. § 3.156(c). For clarification I will print it here:

(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. [recently overturned]

(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. [Fenderson staged rating]

See also 38 U.S.C. 5110

Vigil v. Peake was the first instance of a Vet claiming this defense at the Court. He was seeking an earlier effective date for his PTSD but the decision affects any claim regardless of the injury/disease. If you, the Vet, find any service medical records (SMRs) or old TDY orders that were never used in denying your claim, then you can use these to reopen your claim. Remember that they have to be “relevant service department records”. Old photos of you and your buddies standing over a pile of dead zipperheads with a jungle in the background do not constitute useful evidence for your claim. A lot of times, records don’t get filed in your folder that you (and VA) get from the NPRS Center in St. Louis. If you kept any old records of your TDYs or PCS movements, then they are considered official records. I have discovered that NO TDY records were ever included in anyone’s files. Medical records get scattered all over the place and never make it from Battalion Aid Stations back to your SMRs. This is another reason to request all your SMRs in addition to all military records when you file a SF 180 for your records. When I asked for my SMRs in 2007, I was informed that the only set had been sent to the VARO where I filed a claim in 89. Luckily, I got them back when I asked for an unredacted copy of my C-file. Winning your claim with VA is often a game of “Prove it”. VA will contend (often without looking) that there is no evidence to back up a claim you are making. Having your records is half the battle. Having records that aren’t on file in your mil/med. folders may mean the difference of winning or losing or getting your claim paid back to when you first filed it. Most Vets are not too savvy on how this appeals process works and neither are the idiots who you go to for help. VSOs constantly fail to appeal things for you until its too late. I see it happen quite frequently.

Here is a link to view the Vigil Decision:

http://www.uscourts.cavc.gov/documents/Vigil_05-3246.pdf

About asknod

VA claims blogger
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2 Responses to CAVC–Vigil v.Peake(2008) re:38 CFR § 3.156(c)

  1. kevin wygal says:

    I filed a nod in November of 2012. My case has been forwarded to the BVA. My case is similar to Vigil vs. Peake. My local VA denied my claim in 1996 for what my representative filed on in emotional disorder. Was no proof as the Va claimed and my claim was not well grounded. I never received notification although they sent my SSOC to my parents address and my stepmom burnt it in the trash. I was homeless and in severe depression at the time. In 2006 I filed a claim for increase of my condition. I was again turned down because it was not service connected. In 2009 I filed for PTSD and was denied in 2010. I filed an nod and a denoveau review in 2010. I submitted during this time an appeal and my service medical record from the naval hospital at Norfolk, VA. I was awarded service-connection. The same doctor who did my C&P exam in 1996, did my PTSD C& P exam in 2010. So there is not only medical evidence and a nexus, but there is proof of the VA treating me for Dysthmic disorder. Amazing how I can be denied and denied and then only compensated back to 2009. The VA not only violated c.f.r. 3.156(C), but also c.f.r 4.129. When they granted me 30% If I am suffering with the same condition that discharged me out of the Navy in 1978. My PTSD was ruled direct service connection. The VA failed to acknowledge c.f.r 4.129 and c.f.r.3.156(c). Does this qualify for CUE for an earlier effective date and a higher percentage rating. MY VSO is the DAV. Thank you for considering my reply and God bless. Sincerely,
    Kevin M. Wygal

    • asknod says:

      Kevin, half your problem is the DAV repping you. They know nothing about 38 CFR. You have just demonstrated by your knowledge of Vigil v. Peake that you are more savvy than your rep. He would never be able to win you an earlier effective date of 1996 but I know a few who can. I have yet to meet any VSO who is well-versed on 3.156(b) or (c) and absolutely none who understand CUE.

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