38 CFR §3.156(c) is an oft-misconstrued aberration in the adjudication of Veterans claims. I freely admit I read it very broadly to benefit us munificently in the beginning when I first ran across it. The more precedence I read, the more it appeared to shrink in its judicial reach. In Butch’s case here, I’ll show you why he falls into the Perfect Storm of §3.156(c). But first, let’s examine what it is, what it isn’t and why it may, or may not, benefit you-Johnny Vet.
First, let’s take a gander at what the Secretary attempted to “give” us. The meat of §3.156(c) was originally found in §3.400(q)(2) safely hidden from view. With the advent of the Internet, all you lynx-eyed, wannabe VA detectives started theorizing on just exactly what this offered and how to get a can opener into it. I’m going to bold the most important parts-i.e. the ones VA strives to disregard. I’ll discuss them below.
(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.
(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. (Authority: 38 U.S.C. 501(a))
§3.156(c)2) was added on Sept. 6, 2006 84 FR 169; with the change to the AMA, §3.156(d) was added:
(d)New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.
Get out the notepad and a pen. Starting with (c)(1):
This is how your claims posture had to present if you think you’re going to reopen your claim filed when you got out in 1968-72. It can be a shit ton of money but you have to have the perfect confluence of events. Using Butch as the example, let’s investigate how Butch is going to win this at the Court. He filed for four items when he got out:
- Perforated ear drums
- Perforation right cornea
- SFW Rt. hand and right arm & side
- SFW Rt. side of head
Below the list of injuries, Butch clearly identified where the records could be located (Chu Lai Army Field Hospital; Da Nang Air Evac. Hospital and Camp Zama, Japan. This is important as VA will surely use it to try to deny you. Had they been in the c file, §3.156(c) would not be for application. In Butch’s case, the absence of these records laid the foundation for his filing 46 years later. They weren’t at the NPRC or they would have magically burned up. My guess is they sat at Camp Zama for about 20 years and finally were archived at NARA in St. Louis at the NPRC.
Knowing full well that you can use Moody and its progeny (Roberson) for a sympathetic reading of your plea-irrespective of whether you had legal counsel, it would seem logical to drag out the old “inferred or informal claim” microscope and see what else Butch was up to with these four specific claims. At his c&p, old Butch was far slicker than most of us. He actually sidestepped that VSO idiot and vocalized further on his four problems that day. VA put it down in quotation marks so there can be no doubt he was talking about his current claim. Hell, he even signed it.
We contend he either complained further on the symptoms of his “conditions” or else filed an informal claim much like a VAF 21-526b. Please note Page One of the VA Form 21-2545 Comp. and Pen. examination of 8/10/1970 above. All the “symptoms” mentioned in Box 17 PRESENT COMPLAINT relate directly back to one of his four claims contended in the 26-page VA Form 21-526-i.e. “residuals” and in Box 15 above it. This is why they named it the 526, incidentally. To wit, his claim for SFW rt. hand and right arm & side (4) relates to his thumb and right arm complaints. The reference to the “no problem with the right side” was in reference to the vast quantity of retained metal fragments that were gradually beginning to come to the surface (on the right side of his body). “I have been having headaches” related back to the enormous chunk (3mmX3mm) of retained metal embedded in his skull in the temporal area where he was having the headaches. “My right eye is blurry” referred to the SFW through the right cornea and the remaining 9 retained fragments. The complained-of earaches, recurrent infections and “I have ringing in my right ear” referred to the claim for perforated eardrums. In short, what we have here is a classic case of TBI referred to in 1970 as an organic brain injury-except Butch didn’t have it. To accept the VA version, he had bad 0% hearing is all.
Butch never considered these to be informal claims but what if they were? He’d already filed a 526-the only one you are ever required to file at the time of your original claim. Any subsequent claims back then could be filed on a paper towel or a McDonald’s hamburger wrapper. To be sure, they could also be filed on a VA Form 21-4138 which, at the bottom states you are telling the truth so help you Johnny Vet and signing it with your John Hancock. But what of the VAF 21-2545? It’s an official VA VBA form (note the 21 predesignator) and it contains the proviso for swearing you are telling the truth about your health along with you wet-ink signature just like a 4138. So, I ask, what’s the difference? The BVA VLJ insists it is not a claim, formal or informal or anything of or having to do with the 1970 claim. Seems old Butch just had diarrhea of the mouth that day and was talking smack about something-but not about his claim. More about this later.
VA, for a while now, has used the Joint Services Records Research Center (JSRRC) to retrieve military reports of battles and skirmishes in order to identify Vietnam Veterans’ PTSD stressors. If you disremember when you were at An Loi during the convoy ambush and can’t remember within 60 days one way or the other of the April 21st, 1969 ambush, VA will claim they cannot employ the JSRRC panacea due to your forgetfulness or dismal memory. The Court has officially frowned on this and thinks they should survey a broader time frame. I’m sure VA will eventually get the email but until then, sharpen your wits and try to be aaaaaanally specific if you can about when it happened. One trick I use to remember what happened to me was “Was it Dry season or Monsoon?”
VA will often disremember the prequel to (c)(1) “at any time” or try to segue into a reopening under §3.156(a) instead of a de novo reconsideration of the old decision. Keep your eyes peeled for that hat trick. They’ll also try to adjudicate it as a CUE which is infinitely harder to win-and the wrong legal standard of review.
As the Secretary and Congress were slackers when they wrote this one, there came to be a belief that you had to have been denied in the old decision before you could “reach back” for the reconsideration. In fact, they tried to game both ends and say if you filed again in 2017, three years after you found new §3.156(c) records, you could not go back and ask for reconsideration. Bullshit, my friends. See Emerson v. McDonald (2016)
The Secretary argues that the issue of the applicability of § 3.156(c) is not properly before this Court because Mr. Emerson, despite being represented by counsel at the time, failed to raise the issue below. Secretary’s Br. at 12-14. The Court disagrees.
Emerson picks up where Blubaugh left off. Blubaugh picked up where Vigil v. Peake (2008) left off. It was long overdue because §3.156(c) law has never been adequately fleshed out at the Court. Each case is horribly unique with the majority of the precedential decisions to date centered on JSRRC records. Rarely, if ever, do Vets or their representatives have access to the VBMS or the old claims file and have time to spot these errors. VA doesn’t send you a Western Union telegram announcing they are going back to 1970 because they just found your Chu Lai/Da Nang/ 248th Camp Zama records that vindicate your new claims filing…in 1969.
However, subsection (c) establishes an exception to these rules, the purpose of which is “to place a veteran in the position he [or she] would have been had . . . VA considered the relevant service department record before the disposition of [the] earlier claim.” Blubaugh, v McDonald, 773 F.3d 1312, (2014); New and Material Evidence, 70 Fed. Reg. 35, 388, 35, 389 (June 20, 2005) (proposed rule) (stating that revised § 3.156(c) will “allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government”); see also Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc) (Pietsch, J., concurring) (noting that subsection (c) “is an exception to finality”). Emerson supra
(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.
Just think about that legal standard of review-
“may be rebutted by clear and convincing evidence to the contrary.”
Clear and convincing evidence is the same standard required for a CUE claim-e.g. clear and unmistakable error. The old reasonable minds can agree standard of review. That’s a pretty tough nut to crack. Unless or until VA can prove Butch was funning them and wasn’t really filing an informal claim, then they can’t prevail with their incredible contention. Occam’s razor (and a nonadversarial interpretation) would argue he was just giving them more information of the residuals of his four claims (as in “present complaint”) in reference to the stated claims in Box 15 (Narrative History) .
To cement the Secretary’s error in interpretation and to prove the combat presumption was not granted in 1970 is simple. All you need is a DRO with a room temperature IQ. Her rationale for why Butch didn’t get SC or a rating for his tinnitus is because it wasn’t caused by a head injury or concussion. But, But, but…§1154b?
Ever been to a live Hollywood set? They have a crew called continuity. VA needs a buttload of continuity but it’s too late. You can’t submit more evidence when you get to the Court. I packed this c file to the brim. The 2018 DRO says the 1970 rater didn’t grant SC for ear ring because he didn’t have a combat injury. The VLJ argues differently saying he didn’t get SC for it -or anything- because there was no claim. Well, there goes Clemons v. Shinseki out the window. Butch told me he’d never heard of the term Tinnitus in 1970. Or ’80, or ’90 or until about 2015. Or… we have a case of Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (explaining that “litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for prior agency action”). In DickandJanespeak, that means if you keep changing your story about how this fustercluck went down, the Court can feel free not to believe a word you say.
The Matter of First Impression
Where Emerson falls short, and what makes Butch’s appeal a matter of first impression, is the addition of a wild hare. Two facets of §3.156(c) are present here. Remember, I fought long and hard to get Butch’s Purple Heart and CIB awarded before he filed his reopening in 3/31/2015. Since he had no medals showing combat in 1970, he could never have been accorded the combat presumption. In fact, all VA had were records showing he’d been in Letterman hospital. Nary a record existed from Vietnam. That was simply “combat history” supplied by Butch himself. Now, in retrospect, not only is the VA required to reconsider all the evidence, including the missing 105 pages of service hospital records from the 312th Air Evac, the 95th Air Evac and Camp Zama, but they must also view it de novo through the lens of the combat presumption. Everything Butch said regarding his headaches, his ears and his eyes et cetera has to be accepted at face value like the Oracle at Delphi unless the VA can rebut the new §3.156(c) evidence as not being probative or instrumental in granting a compensable headache rating, a compensable tinnitus rating and a compensable rating for the eye. We’ve already nicked them for one CUE on his right arm for 10% back to 1970. Here’s why…
I might have been born at night but I know who I’m dealing with. Being a busy little adjudicator, when I hit the wall on the residuals of the 1970 filings in 2017, I set to work on those additional contentions implied in 1970. We filed for (and won) TBI, headaches and a compensable rating for the right eye due to restricted field of view-but all were awarded with 2017 effective dates. Now, with the new service department records and Emerson exquisitely on point, we fight for the §3.156(c) using the additional §1154b cudgel. Going up to the CAVC with this dynamite is akin to attending a knife fight with two Uzis and a bandoleer of M26s. It’s rocks, paper, scissors, gun.
What amazes me is how a VLJ can logically say with a straight face that Butch went to a c&p exam for his four contentions where he (allegedly) complained about nine “other contentions” and those were immaterial/unrelated to the original four. Nevertheless, according to a Law Judge, they definitely were not claims as defined in §3.155 (1970). Let’s see, they would have to be in writing, refer to specific injuries or symptoms and evince a desire for entitlement to same… at a c&p exam for all of it… naw. No claims here. Move along Butch. Nothing to see. Must have been a fig newton of your imagination. I can almost hear Foghorn Leghorn addressing Butch the chickenhawk… Claims? Claims? Who told you you had a claim? Who put in them claims? I don’t see no claims. What you been smokin’, Butch?
How about this (below). Four days after he mentioned he had (continuous) ringing in his right ear, VA conceded he had tinnitus at his EENT c&p but failed to rate him for it. This is CUE but it can be resolved via the §3.156(c) and §1154b. I find it interesting VA says he didn’t claim tinnitus when it is the hallmark of a traumatic, explosive audiological event. So, VA doesn’t rate him for perforated eardrums but instead the residuals of the injury-i.e. neurosensory bilateral deafness-but only at 0% mind you. How, pray tell, do you step over the compensable diagnosed tinnitus to get to another residual? Only at the VA folks.
As for granting the combat presumption, I ask if reasonable minds can concur that the combat presumption was not considered in his 1970 rating. I don’t see any mention of it. Butch said he has headaches. Ergo, by operation of §1154b, he has headaches. Ditto tinnitus and blurry right eye problems.
Here’s the BVA decision. I see no mention of the definition of an informal claim- nor any discussion of same, §1154b or any sympathetic reading of the evidence. I see no proper application of §3.156(c) to the evidence of record. The 105 pages of service department records are replete with all manner of discussion of SFW injuries to the right side. Nevertheless, Judge Crawford insists there was never a claim for SFWs of the right side. Aruuuuuuu? My take is Butch was sold down the river because the VA is adamant they are not going to cough up a shit ton of shekels. I forgot to add-a spouse and 4 dependents in the intercurrent period from 1970 to 2015 would be for application here too.
What a wonderful case to break my maiden on at the CAVC. To be sure, I’ve had the honor of winning two there with Bob Walsh. This will be my first solo outing as First chair (GIB). I actually look forward to an oral presentation before a panel. This is so cut and dried as to demand reversal. Arbitrary and capricious is a masterpiece of understatement. This was egregious hit-and-run justice. The DRO even conceded tinnitus in 1970 but said “In 1970, tinnitus had to be severe and continuous, and a symptom of a head injury or concussion before service connection could be granted.” I guess 60 mm mortars or satchel charges landing on top of your bunker giving you TBI aren’t included in the “combat/head injury or concussion” column. The SOC also used the wrong legal standard of review. The DRO chose the CUE standard rather than the more lenient §3.156(c) path. In fact, there simply is no mention of §3.156(c) or §1154b for that matter. If “at any time” hasn’t happened yet, when will it? We’re praying somebody at the Court will finally make that call.