Greetings, fellow Veterans and Veteranettes alike. Since I’m still undergoing training on the proper use of pronouns, I’ll err on the side of political correctness and use “you”-e.g. Thank you for your service to America. I think that’s still permitted even if I think it is the absolute worst excuse for an apology to Vietnam Veterans. With that said, let’s proceed to today’s subject. How in Sam Hill do you get the VA rater(s) to actually do a reconsideration as promised in §3.156(c)(1)? Let’s break it down and analyze how to get there.
First, I’ll reprint the actual regulation in its entirety for those novitiates who are unschooled in this intriguing subsection.
(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 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.
Interestingly, the original concept for §3.156(c) was buried in §3.400 for aeons until 2006. At that time VA opted to excise it and reinsert it under §3.156. Technically, VA would have us believe the transfer was equitable and resulted in no one being left behind. However, a careful analysis would show the addition of some subtle featherbedding. I have yet to see VA reduce the requirements for any entitlement that actually made it easier to gain service connection. Think what you may about the MST or PTSD fluff inserted into §3.304, but just remember the number of winners has not increased dramatically. I’ve had one where my client was raped out on maneuvers in Germany in 1986 and came up pregnant. Yeppers. The reg does state “Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. I filed the claim (her third attempt at summitting) and they said the STRs reveal…”She said it’s probably her boyfriend. They got drunk last month and forgot to use protection.” Only problem is she doesn’t drink and never has. Somebody just put that in there. Notably, the birth certificate has no name listed for the father. Unswayed by this damning evidence, they denied. I obtained a killer IMO and now we sit on the Group W(ait) bench outside the BVA courtroom and wait. So don’t pound sand up my ass telling me §3.304(f)(5) is far less demanding when trying to prove your MST claim. How about my Purple Heart Vet wounded outside Quan Loi RVN in I Corps. We even had the pictures to prove it. Check it out.
That first little curl of smoke to the right is the tractor my Vet was riding shotgun in with a Pig and six cans of 7.62 when they hit the mine. He said it was like being in a washing machine with all the ammo and the Pig flying around. He woke up a while later and dragged his driver out away from the burning vehicle. Look at how far the explosion threw their rig off the road. No TBI/PTSD here, folks. Nothing to see. Move along.
The most important thing you have to grasp is that §3.156(c)(1) is not permissive. VA “shall” reconsider- not “may” or “choose to if they feel, like, super motivated, ya know.” All my expeditions into this claim style have resulted in little more than “No. Denied” to “We checked it out but it didn’t change our minds.” The regulation cited? Why, §3.156(a). The problem is obvious . VA raters have no conception of what or how to approach this. The Prime directive is deny but the VA M 21-1 Adobe 2.5 insertaphrase program has little or nothing in the library to use for these contigencies. Hence, they ad lib. This is where you have to bust them.
Equally important is that if you intend to employ §3.156(c) to support an earlier effective date going back to your very first filing for your ills, your win will be hugely dependent on a period diagnosis. Thus, if you are claiming Bent Brain back to 1970, you will need a psychologist who stated as much back when you filed after separation. The records will need to be pertinent to the alleged injury if you hope to win. You can’t gain traction with §3.156(c) if you present records showing pes planus when you filed for tinnitus and ruptured eardrums.
I’m currently redoing Butch Long’s LZ Cork §3.156(c) claim with Kenneth Carpenter and am learning at the foot of a Master. No, that’s not to say Ken has an unparalleled record of wins on §3.156(c) claims. I doubt anyone can claim that honor… yet. The point Ken shared with me is to hold their feet to the fire on the first part of the subsection-i.e. §3.156(c)(1)(i)- and make them prove they accomplished the reconsideration. With Butch, I laid this out like a punji pit. I submitted just the proof of the CIB and the PH to pull them in first to force a reconsideration under §3.304(d)/38 USC §1154B presumption as well. It fell flatter than a soufflé during recess in a daycare center but… notably they granted everything without so much as a whimper which invokes the follow-on subsections of §3.156(c)(3) and (4). I came back a second time with a bunch more period STRs and got the same nontreatment . Again, there was no mention of the reconsideration criteria in (3) and (4) to discuss whether an earlier date was for application. Essentially, VA’s position was “Yeah, you sent in new shit but we don’t see anything that would roll our socks down and give you a million shekels.” That’s not how §3.156(c) works.
As I have written here about my new 2020 filing using yet again even more STRs I somehow overlooked and neglected to include back in 2017, VA has once again shitcanned the decision using the defective logic on how to employ the tenets of §3.156(c). Ken has evolved his thinking further on this subject since the January 2021 denial and suggested we ask for a (bleh) Higher Level of Review (HLR) to force them into actually proving they accomplished this required reconsideration rather than just saying they did so. As most of you know, a HLR is really nothing more than an informal DRO review and a token phone call to check off that box. The HLR has a two-fold purpose. First, it puts the VA on notice that they can’t just shuck and jive or do the Moonwalk and say they reconsidered. Secondly, it will show the Board – and perhaps the Court if we don’t prevail below- that we have crossed every t and dotted every i in our pursuit of justice. We want to give VA every opportunity to step on their necktie and kiss the curb on the way up the ladder. Everyone can see the 800 lb. gorilla sitting on the sofa by now. The specter of having to pay out a million dollars (or more) is anathema to them. Resorting to illegitimate legal ploys was de rigeur the last two times. Nothing leads me to believe they’ll change their tune. I’m convinced VA doesn’t have a Cliff Notes book on §3.156(c). They never needed one because no one had a textbook case that could be won.
Now let’s focus on §3.156(c)’s later subsections of (3) and (4). (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. VA fell into the punji pit in 2015 when they granted everything I asked for in my initial reopening. Nothing was said about the new proof of combat and the applicability of the regulation once they granted all this. Who is to say that they did not use the new records to grant? Why wasn’t that clearly stated in the rating decision? Where’s the VA’s independent medical opinion saying the new records were redundant or not probative? So, how is it I got Butch TDIU right out of the box for PTSD, tinnitus, blindness and a gazillion SFWs from head to thigh… but no discussion whatsoever of §3.156(c)?
Following that, a new tranche of records in 2017 resulted in a TBI rating and headaches for 50%, a CUE back to 1970 for a separate 10% for the right upper shoulder SFW but nada on the applicability of §3.15(c)(3) or (4). It appeared to me that they wanted 1970 to go away and the proper way to do it was to throw in SMC S and anything else they could grant without invoking the dreaded regulation and paying out. Old Butch has steadfastly averred he has blurry vision with a traumatic cataract since he woke up after the blast. There’s a “hole” in his vision and VA finally had to concede it with a 10% rating but we’ll hear no talk about 1970. Hear? Oh yeah, and we’ll throw in a year earlier for the tinnitus under $3.114 but it won’t result in any more $. That’s VA’s touchy-feely side. We want so badly to give you a shit ton of money but the regulations won’t permit us to.
Obviously, the village idiot can read between the lines and see how easy it is to grant all these disabilities now-in 2015 to 2018-and plausibly look you in the face while saying ” Oh Hell yeah, you’re screwed up, boy, but the old records you found didn’t provoke us to grant. Shoo doggies, there ain’t nothing in them that would support the new ratings we gave you just now.” So, how do we prove the old stuff we found was the trigger? Why, go get a retrospective IMO that says s/he ( IMO doctor) would have granted in 1970 based on what they are looking at in retrospect. The beauty is VA has already fallen into the punji pit by granting everything without so much as a “but… but”. It would be difficult now to come back and try to defend it (refusal to grant back to 1970) when they already have given away the farm.
One thing that sets Butch’s §3.156(c) claim apart from any others that have been litigated in the past is simple. Butch’s claim doesn’t depend on any Joint Services Records Research Center (JSRRC) records. All the big name cases like Blubaugh or Emerson which were litigated based on §3.156(c) are for PTSD. While their JSRRC records might have supported their alleged stressor, they did not provide a medical diagnosis confirming they suffered PTSD. Butch’s contentions, on the other hand, are residuals of eating a 60 mike mike and the resultant concussion blast injury. Admittedly, his claim also includes PTSD- but only as a secondary to being attacked and wounded by the gooks. He didn’t need the JSRRC to investigate and determine whether he had a valid stressor to support his bent brain diagnosis as both Emerson and Blubaugh did.
The presumption of regularity cannot paper over this error. Absent a doctor standing up and saying the treasure trove of old medical records had nothing to do with granting 160% of combined ratings for PTSD, tinnitus, TBI, headaches, right eye vision loss and a gazillion SFWs with retained metal fragments in eight muscle groups, VA is going to have to explain what fact or facts were instrumental in granting all these injuries. To date the cat seems to have their tongue on the subject.
Stay cool in the heat if you live out west. Stay out of high-rise apartments in Surfside, Florida. Be safe, too. I’ve now had two friends who are vaccinated come down with C19. One 40 and one 71 years old. Obviously, the product isn’t perfect yet so be careful. I’ve restricted my AO to the hacienda and the hospital since I came back from Sam’s go-to-heaven party last February in 2020. Nothing is as important as your health. We men usually don’t figure this out until we’re in trouble.