READ about the special case of using official service records as new and material evidence to reopen your claim.
- Why would you need to reopen a VA claim?
- When does a VA decision become final?
- What kinds of VA claims can be reopened?
- “New and material” meaning
- Reopening a claim in the new VA appeals system (AMA)
- Filing a VA claim to reopen
- Who decides whether evidence is “new and material” at VA?
- Can you appeal an unfavorable new and material evidence determination?
- Does the type of evidence you submit matter?
- The difference between reopening a VA claim or filing a new VA claim
- Additional evidence within a year of a VA denial
- Reasons to NOT reopen a VA claim
- Should Blue Water Navy Veterans try to reopen previous VA claims related to Agent Orange exposure? (after the Procopio Decision)
- Effective Dates for a Reopened VA Claim
- “Service Records” as New and Material Evidence (including Navy Deck Logs)
- Blue Water Veterans – Will they main their effective date?
- Can you appeal a reopened VA claim?
- Final Thoughts
Brad: Hello, welcome to CCK live, or not so live in this particular case. I’m Brad Hennings with Chisholm Chisholm and Kilpatrick. I’m joined by Jordan Coad and Nicholas Briggs and we’re going to be talking a little bit about how to reopen your VA claim. The focus of most of this is going to be on what we call the Legacy appeals that are pending at the V.A. If you have any questions as we’re going along, please feel free to reach out to us on our website cck-law.com or Facebook. Leave us any questions there or anywhere else you can get in contact with us, we’d be happy to try and answer any questions you may have.
So, going right into it, so why do you need to reopen a VA claim? So, the reason you need to reopen a VA claim is because after a veteran files a claim for benefits and it becomes final, that means the veteran gets a decision and doesn’t appeal it and it’s an unfavorable decision and a year passes it comes what they call final. So, basically you have to start over from scratch. However, you can reopen it if you find and submit new and material evidence and in this CCK live we’re going to breakdown when a veteran should reopen a claim and when there may be better options. What counts as new and material evidence? We’re going to talk a little bit about the new appeals system, VA Appeals Reform and what the equivalent of new and material evidence is, and then common pitfalls to avoid when opening your claim as well as some additional things So, when does a decision become final?
Nicholas: So, decisions issued by VA have an appeal period. In the case of a rating decision, you have within a year to file an appeal of that decision. If they happen to issue a Statement of the Case then you have 60 days or the full year if it happened to have been issued within a year after the rating decision, whatever comes later. And then, after a Board decision, you have 120 days to appeal it. So, if you’re out of those time frames depending on the type of decision that you received you would need to reopen the claim to get it adjudicated by VA again.
Brad: Okay, and so what kinds of VA claims can be reopened?
Jordan: So generally Service Connection claims for, you know, disability compensation dependency claims, burial benefits, claims that cannot be reopened are increased rating claims.
Brad: Okay, so is there a limit to how long you can wait before reopening a claim?
Nicholas: No, no time limit.
Brad: Okay, so if I filed something in 1995. I filed for service connection for PTSD for example and it’s now 2019 I can attempt to reopen my claim even though it’s been 14 years?
Brad: Okay so, VA requires earners to have new and material evidence to reopen a claim under the legacy appeals system. So, what does new and material really mean?
Jordan: So, new seems pretty self-explanatory, something that VA did not have before, when it made its previous decision. Material evidence is where it gets a little bit trickier. So, I think the best way to explain what material evidence is to give an example. It’s generally something that relates to the reason why a veteran’s claim was previously denied. So, if we looked at a claim for service connection for a knee disability for example and VA in the decision when they deny the service connection originally, they find that the veteran does have a knee disability and also that he or she did have an injury in service but denied the claim because there’s no evidence that connects the current disability to the injury in service that’s the type of evidence that you would need to reopen the claim. That would be material evidence. So, for example, if you were to submit, you know, an opinion from a doctor that said that the current knee disability was related to the in-service injury that would be material evidence. But if a veteran just submitted more evidence about the injury in service or about the current diagnosis of the knee disability that would not be qualified as material evidence to reopen the claim.
Brad: Okay, so now, can you reopen a claim in VA’s new appeals system, the Appeals Modernization Act or Appeals Reform?
Nicholas: So, in theory, yes. But it’s referred to by a different name it’s now what’s called the Supplemental Claim. So, in the new system is different in that a supplemental claim can include an include an increased rating claim but either way you’re asking VA to readjudicate the issue after filing what’s now called a supplemental claim.
Brad: So, is there a meaningful difference between new and material, which is what’s required under the Legacy System, and new and relevant, which is required under Appeals form.
Nicholas: Sure, so in theory, yes. There is supposed to be a difference. New and material evidence is already meant to be a relatively low bar and the VA has made it clear throughout this process that new and relevant is supposed to be an even a lower evidentiary bar. That said, it remains to be seen how they’re actually going to apply the standard once they start adjudicating these issues.
Brad: So, to enter this supplemental claim lane or to file this supplemental claim do you have to prove you have new and relevant evidence.
Nicholas: Yes, and it would be a good idea to make sure that you include why the evidence is new and relevant in your submission because it’s possible that VA could deny that issue to begin with. They won’t even get to the merits of the underlying claim because they’ve determined that the evidence isn’t new and relevant, So, the sooner in the process, you can make that clear the better.
Brad: So, you either have to submit the new and relevant evidence on your own or you have to identify where it might be for the VA to go out and get it and say. “I’ve received treatment at the VA hospital, showing I have a clear, current diagnosis of something now, and that’s why you denied me before. That’s new and relevant. Please, adjudicate my claim.”
Brad: Okay, so back to the Legacy System. How do you request that your claim be reopened?
Jordan: So, you would submit the request to your local or regional office and it would be best to submit the new and material evidence with that request and maybe give an explanation for why, you know, you believe it’s new and material and how it relates to the reason why VA denied you your claim in the first place.
Brad: How could you be sure that they won’t just create a new claim that you started from scratch
Jordan: So, you can be sure they won’t do that because that’s not a thing. They can’t do that. If you have a final decision on a service connection claim, you can’t just file a new claim. You have to have new and material evidence to reopen that claim.
Brad: Okay, now who is exactly is deciding whether evidence is new and material at the VA when they’re making these decisions?
Nicholas: Sure, so it could be a VA Rating Officer. If you happen to file an NOD. and request DRO consideration of the issue then the Decision Review Office is going to do it. But it’s always going to be the Regional Office making that determination in the first instance.
Brad: So, there’s always going to be some kind of adjudicator at the VA. It’s not going to be the Regional Office Director or the Secretary of Veterans Affairs making those decisions.
Brad: What can you do, or what should you do if the VA wrongly does not consider the evidence you submit that’s new and material. Can you appeal that determination?
Jordan: Yeah, you can appeal it just in the same way you would appeal any other denial from the RO. Submitting a Notice of Disagreement and following through the process for that. So, Notice of Disagreement and then, you know, if they continue the denial, the VA will issue a Statement of the Case. Then you could submit a Substantive Appeal or a Form 9. And appeal that on up to the Board.
Brad: So, that’s an example of appealing in the Legacy System which you could do and the new system of Appeals Reform the supplemental claims whether something is new or relevant can also be appealed all the way through the various options they have. So, let’s talk a little bit about the evidence. Does the type of evidence you submit matter, Nick?
Nicholas: It doesn’t matter, necessarily. They’re going need to consider it one way or the other. Obviously, you still want to demonstrate that it’s new and material. There is one specific type of evidence that’s more important because VA needs to go through a different set of procedures to consider it, and that new type of evidence would be New Service Department Records, that weren’t considered or submitted previously.
Brad: So, I think we’re going to get into that in a little bit. That’s a great point. Generally, it doesn’t matter what the evidence is if it’s new or material. It can be a lay statement. It could be a statement from a friend or relative. It could be a medical treatment record. It could be a Medical nexus opinion. It doesn’t have to be just one kind of evidence. It could be any number of things as long as it’s new and material to the underlying claim that you previously had denied. So, let’s talk about what’s the difference between re-opening a VA and just submitting a new one?
Jordan: So again, if you are trying to get service connection for a disability and VA has previously denied that and that’s a final decision, you can’t file a new claim for service connection for that disability. You have to file a claim to re-open. In the case of an increased rating claim, it’s the opposite. So, you cannot file a claim to re-open that. You have to file a new claim to increase your rating,
Brad: Great. So, now what happens when you file the claim for service connection for a particular disability and it’s within a year of that rating decision, it’s denied. So, within a year of that rating decision and you come across additional evidence and you submit it to the VA what happens at that point?
Nicholas: Sure, as long as it’s within that one year of that initial rating decision, V.A. is required to issue a new decision considering the evidence regardless of whether it speaks to the underlying issue.
Brad: So, this is what many veterans think of as reconsideration at the Regional Office level. But, just to explain, there is nothing in the regulations or the statute that contemplates reconsideration at the Regional Office level, rather what it is, it’s under 38 C.F.R. 3.156B which mandates when new and material evidence, in this case, additional evidence has been submitted within a year of the rating decision. VA is obligated to readjudicate or take another look at it. So, are there any reasons a veteran might not want to open a previous claim? Reopen a previous claim?
Nicholas: The biggest reason is that it has the potential to jeopardize certain benefits that they’re already receiving. So, you might imagine a scenario where a veteran already has a total disability rating and permanent and total status because their disabilities aren’t likely to improve, but if they file a claim for a new condition, VA is most likely going to schedule them for a new exam and if they discover improvement in the conditions that resulted in the permanent and total status you might be putting that benefit at risk.
Brad: So, it’s a case of, there are times where you want to be a little strategic in your filing and again, we always like to point out that before you do anything on your VA claims please talk to someone who might be knowledgeable about the VA system because it can be very complex. Be it a veteran service organization officer, a VA accredited agent or a VA accredited attorney to help you make some of these decisions because it can be very important to your underlying benefits. So, let’s talk a little bit about, there’s been a recent case in the U.S. Court of Appeals from the Federal Circuit called Procopio and what that did was it expanded the definition of who is a Vietnam Veteran for the purposes of exposure to herbicide agents, Agent Orange, and it’s now including a number of — thousands of what they call Blue Water Navy veterans who served on ships about up to 12 miles off the coast of Vietnam. So, should these Blue Water veterans who previously filed a claim for benefits based off of Agent Orange exposure, should they know file to reopen the claim?
Jordan: It depends on the specific instances of each case, but I think that our general feeling would be yes. Though that case just came out and it’s very new, so we still don’t know exactly how — what VA is going to do or how those types of claims are going to be processed going forward. So, it’s still a little bit of an unknown in that respect.
Brad: And, I think that’s a great point. So, our encouragement would be if you’ve had those claims and they’ve been previously denied, please go ahead, we would suggest– Consider filing them again. As to how VA is going to handle that remains to be seen and there’s a lot of thorny issues, we’ll talk about a few of them, related to the effective dates of benefits, whether it will go back to original claims or some other time. But, the best way to protect yourself is if you’ve already filed a Blue Water Navy Veteran claim previously, refile it, file to reopen, and say, “Hey, listen I’m now covered under this.” Because that will at least get your marker down and will get VA to start to work on it. When you reopen a claim when will your effective date be in most cases?
Nicholas: Most commonly, it’s going to be the date you filed the new claims to reopen.
Brad: So, it won’t go back to your original claims. So, if I filed in 1995 and then I file again in 2019.
Nicholas: Unfortunately, that’s the other side of the final decision requirement we were talking about earlier. You know, once that decision’s final you can file the claim to reopen but on the other side of the coin, you can’t get that same effective date anymore, usually.
Brad: So, are there any exceptions to that rule? For instance, if you submit official service records which we addressed before?
Nicholas: Yes, so as I’ve mentioned before if you happen to submit new service department records that weren’t considered by VA previously, 38 C.F.R. 3.156c, which is another aspect of the regulation that we were talking about earlier. It requires VA to go back and reconsider the original claim. So, that would then go back to that 1995 claim we were talking about as an example.
Brad: So, something in those records, for whatever reason, had never gotten to the VA, they have been lost, or you had a copy and they had been destroyed by the government, the other copies were accidentally destroyed by the government. You find these in your attic, you submit them into VA and they somehow have to do with your claim then you could potentially get back to the 1995 original claim.
Nicholas: At the very least it requires them to reconsider the original claim. There’s still some additional steps from there to show that the merit for the grant would need to go back that far.
Brad: So, what does the VA consider — What is a service record exactly?
Jordan: So, it has to be an official record. Something, for example, gathered by the Department of Defense, a military service department, or VA archives and it also has to be a record that existed at the time the original claim was filed, but not associated with the claims file at that point.
Brad: What about if the records were just forwarded from the Army, or the Navy, the Air Force, the Marines and it’s years after you’ve filed your claim. Would this 3.156c potentially apply?
Nicholas: Yeah, again it’s not a matter of when they received it, it’s just a matter did they exist at the time and are they relevant to the issue that your seeking service connection for. So, even if it’s tomorrow they find new records and submit them to VA and they’re relevant to your case, they would still be applicable and allow you to pursue reconsideration.
Brad: So, that would also include records that were potentially declassified that existed but just weren’t available years prior. We don’t have a lot of cases like that but we do have some clients where some of their records were classified and only became declassified much more recently.
Brad: How about Navy Deck Logs? Are those service records? Especially, as they relate to these Blue Water veterans where the ships may have been and whether the veteran was on that ship.
Nicholas: Yeah, so Navy deck logs would fall under that category. One thing to keep in mind is that typically deck logs just aren’t going to be associated with the record unless you make it clear to them that there’s something in the records that would support your case. So, VA is not usually going to go out on their own and request the deck logs unless there’s a reason for them to. The reason why this would be important for Blue Water Veterans is because these deck logs will usually show, down to a specific point of latitude and longitude where these ships are at a given time. So, that provides pretty solid evidence of where a ship was and if it falls into that 12 nautical mile boundary.
Brad: So, what are the other questions a lot of veterans have, particularly the Blue Water Veterans are– will they maintain an original effective date if they ultimately receive benefits if they applied in the past. So, another example, they applied in 1995, were denied for being in Blue Water, apply in 2019, are now granted. What would their effective date be? So, our understanding is it depends on what VA does, we believe there are divergent views as to how VA is going to handle this. We believe this is likely covered under what they call the Nehmer provision, in which case you could potentially get back to 1995. But we’re not entirely sure how that’s all going to shake out at this point.
Brad: Okay, so can you appeal a re-opened claim if you disagree with the VA’s decision again?
Jordan: Yes, you can, and if it goes up to the Board of Veterans’ Appeals and the Board denies a claim to reopen you can appeal that to the Court of Appeals for Veteran’s Claims.
Brad: And, that’s going to be true under the Legacy system or under the new Appeals Reform system. Again, we’ve been focused more in this discussion on the Legacy Appeals system just because that’s what– There’s still many, many cases sitting in the system and we’re just about to get started with the new appeal system, or the appeals modernization, Appeals Reform. However, many of the principles related to new and material evidence will also apply to the new and relevant evidence standard that is going to apply to the new claims. Well, with that, I just wanted to thank everyone for joining us. Again, this is Brad Henning with Chisholm Chisholm and Kilpatrick, joined by Jordan Coad and Nicholas Briggs. Thank you for joining us. Are there any final words that you have about the top.
Jordan: I think just this is complicated stuff. And it’s often very fact dependent and so really if you’ve got any questions, reach out to a Veteran’s Service Organization or us, or someone who works in the field who has knowledge and experience and that’s because it’s complicated and isn’t super easy to navigate.
Nicholas: Just again, it’s not really a matter of submitting any old evidence. You just want to make sure that what you’re submitting is relevant to the entitlement that you’re trying to establish, and like Jordan mentioned, talking to a service organization could help you make sure you have all of your ducks in a row.
Brad: Great, well thanks again. Again, reach out to us on cck-law.com or on Facebook or any of the other various social media presences we have. Please feel free to call with any questions or concerns. Thank you again for joining us and have a great day.