New and Material Evidence: How To Use It To Your Advantage

CCK Law: Our Vital Role in Veterans Law

New and Material Evidence: When Is My Effective Date?

Recently, we posted about how to reopen your claim with new and material evidence. But what if new and material evidence emerges while your claim is still appealable? What if service records relevant to your claim become available through declassification or are only located by the DoD after your claim has already been denied?

In each scenario, VA would still have to reconsider your case. However, the effective date awarded could be earlier than the date you submit the new and material evidence. This in turn could potentially have a significant impact on the amount of compensation you receive because VA will grant retroactive benefits from that date.

VA has been known to conveniently “overlook” the federal regulations – CFR § 3.156(b) and § 3.156(c) – that determine effective dates for VA decisions that involve new and material evidence. Let’s take a closer look at what the regulations tell us.

New and Material Evidence: What Is It?

To be considered new, the evidence must currently exist and be submitted to VA for the first time. To be considered material, the evidence must be relevant to the reason(s) your claim was denied previously. For example, if VA says your claim was denied because you did not show service-connection, material evidence would give weight to the argument that your disability was incurred in or aggravated by your military service. Check out this post for a little more explanation of what counts as new and material evidence and where to find the reason your claim was denied.

Pending Claims

Your claim is considered pending if

• you have not filed an appeal, but the deadline to appeal has not yet passed; or,
• you have filed an appeal, but a final decision has not yet been made on the appeal.

If VA receives new and material evidence while your claim is still pending, they will consider that evidence to be part of the pending claim. That is, you do not need to file a new claim or reopen the original claim.

If VA receives new and material evidence during the course of a pending claim, the effective date will go back to the date of the pending claim, not the date the evidence was submitted.

Service Department Records

If service department records are submitted and have not been previously considered by the VA, VA is required to reconsider your claim.  To qualify, the service records must be

• official – i.e. gathered from the Department of Defense (DoD), your military service department, or the VA archives;
• new – i.e. they existed at the time you filed your claim and they have never been included in your claims file; and,.

What is considered a “service record” should be broadly interpreted by the VA. There are, however, a few types of records that may not obviously fit the requirements, but are nevertheless included in the regulation. These types of records include:

• Service records related to the in-service event, injury, or disease you’re claiming, even if those records do not mention you by name. For example, say you were denied benefits for your claim for PTSD that resulted from an in-service event. You were denied because your personal service records did not contain any documents that could show that the incident actually occurred. Later, however, your attorney finds a DoD report that shows the event did occur, and it occurred near where your military duties placed you on that day. Even if the report does not mention you personally, VA would still have to reconsider your claim with the new evidence.
• Service records that were forwarded by the DoD or the service department to VA any time after VA’s original request for service records. That is, any records that were forwarded too late to be considered with your previous claim.
• Declassified records that could not have been added to your claims file because the records were classified when VA decided your claim. For example, say that in 1975 you filed a claim for multiple myeloma (bone cancer). The multiple myeloma resulted from exposure to Agent Orange while you were serving in Thailand during the Vietnam War. VA denies your claim because there are no service records (personal or otherwise) that show that Agent Orange was used on bases in Thailand. Then, in 1989, DoD declassifies a 1973 report that shows that Agent Orange was indeed used in Thailand. Even though the report was declassified years after your claim was denied, VA would have to reconsider your claim.

Effective Date with Service Record Evidence

In both of the above examples (the PTSD claim and the Multiple Myeloma claim), VA would be required to reconsider your claim. But what does this mean for your effective date?

If VA grants your claim after receiving new and material service records that meet the above criteria, your effective date should again be the date VA received your original claim. So, if your original claim was filed 10 years before a relevant document was declassified, VA would have to pay you retroactive benefits for that entire 10-year period. There is no “statute of limitations” either, meaning new and material evidence can be submitted after any amount of time has passed.

So, if new and material evidence becomes available and either your claim is still pending or the evidence is in the form of official service records, do not submit a whole new claim and do not attempt to reopen your claim. Doing so may put your retroactive benefits at risk.