READ about the special case of using official service records as new and material evidence to reopen your claim.
Jonathan: Welcome. I’m Jonathan Greene with Chisholm Chisholm & Kilpatrick. With me today is Michelle DeTore and Christian McTarnaghan. We’re going to be talking about how to reopen your VA claim. So in the current Legacy Appeals process when a decision becomes final, you can still, after that fact, reopen your claim with new and material evidence. So what we’re going to be talking about is, what is new and material evidence? How do you go about reopening your claim? When is it more advantageous to reopen your claim versus doing another appellate option possibly, and hopefully answer a few questions from the audience if you have any. So Michelle, when does a decision become final?
Michelle: So okay, so a decision typically becomes final when you miss the appeal timeframe. So if we’re talking about a rating decision, you have a year to appeal it. So if we do not appeal it within the year, the decision is final. For a Statement of the Case or an SOC it usually is 60 days. So if you don’t file your appeal within that time frame or a decision before the Board, you have 120 days. If you don’t appeal within that time frame then your decision is now considered final for VA purposes. We have a little demonstration.
Jonathan: Thought we wanted to use some visual aid here. So this is the current Legacy Appeals process. So what Michelle is talking about is when you get to this point, you file a claim and get to a rating decision. If you do not appeal and a year passes, then that decision is final. If you go down and get to the Statement of the Case portion and 60 days passes or a year from the rating decision, then that decision will become final. So basically, if you don’t adhere to the allowed time frame to appeal these decisions, they will become final.
Jonathan: And at that point, generally speaking, you don’t have any option except to reopen your claim with new and material evidence. Is there a time limit for how long you can wait before reopening, Christian?
Christian: No, there isn’t. The only time limit is, what Michelle alluded to, is the time limit you have to initially appeal. So after that you can submit new and material evidence whenever you get it.
Jonathan: And what kinds of claims can be reopened?
Christian: So I think most typically we see reopened claims for service connection, DIC benefits but on the other end of that, increased rating claims are not claims that are reopened. If you were denied an increased rating, it was because you didn’t show any evidence of worsening and so if you were to file a new claim with the VA saying my condition has worsened, that would be another assertion of worsening and that would be a new claim for an increased rating and that’s how VA would interpret that submission.
Jonathan: And it would be evaluated for the worsening at that point in time.
Christian: Exactly and the evidence of the worsening from the date of the claim on.
Jonathan: Okay. So we’ve mentioned now reopening with new and material evidence, what does that mean? So I think that new evidence is clear. Evidence that wasn’t previously of record that is submitted. It’s something that they haven’t seen before, but often times you hear that the evidence may be new but it’s still redundant or it’s repetitive of what was previously submitted. So the key really is material and what does that mean?
Christian: In order to material evidence, what material evidence is depends on why you were denied. So I think a hypothetical works best. So if you were denied service connection by a rating decision and missed that one year appeal period because there wasn’t a nexus or medical evidence that connected your in-service injury to your current disability. The material evidence would have to go to that nexus component. So that’s what would make it material. It has to go to the reason, it has to be new evidence that could potentially substantiate your claim for the reason why it was denied.
Jonathan: Okay. It has to be relevant to the reason why.
Christian: Relevant to the reason why and it has a possibility.
Jonathan: Okay, right. And the reason why we’re smiling when we say that is we’re going to get into something called the Rapid Appeals Modernization Program where the standard isn’t new and material, it is new and relevant but we will get to that in a minute. So thank you for providing that example, Christian. Do we have any questions at this time? All right. So let’s go right into RAMP. So the Rapid Appeals Modernization Program is a pilot program for what is coming hopefully next year which is Appeals Reform. So RAMP is a little bit unique. It is not the full blown Appeals Reform. It’s basically two of the three lanes are open and we have discussed this a few times on Facebook Live but I’m going to bring in a visual aid and I believe that one is already there on your screen but in Appeals Reform, you have three lanes and one of them takes you to the Board. This lane is really not available under RAMP but you do have two options to send it to the higher level – essentially appealing a decision to the higher level review which is going to go to somebody at the Regional Office who’s a higher level person who can adjudicate based on the evidence of record or you send it to the supplemental claim lane and I don’t know if you can read that but you send it to the supplemental claim lane with new and relevant evidence. So if we’re talking about new and relevant evidence that’s slightly different than new and material. What is the difference or at least what do we think is the difference between material and relevant?
Michelle: I think that the difference that we’re seeing is it’s a lower standard for a relevant evidence versus material. As Christian was telling you, material means that it had to be relevant to the reason VA denied you so know, if you’re missing that element for service connection, you need to provide that element to VA. Relevant evidence, VA has not quite defined it yet for us but how we see it is that it just has to be relevant to your claim rather than material to it. So it’s a lower standard for veterans.
Jonathan: An interesting thing about the supplemental claim lane is, and if you could see all of the arrows to it in that diagram is, RAMP allows you to or Appeals Reform will allow you to take any decision and then put it into that lane with new and relevant evidence. And as Michelle indicated, we think that the relevant evidence is an easier standard to hit than the material evidence standard. So that supplemental claim lane is similar to reopening a claim with new and material evidence except that we’re putting an end to that lane with new and relevant evidence. So enough on RAMP. We’ve talked about it a lot and I would invite you to our website at cck-law.com, a lot of material discussing RAMP and how Appeals Reform is going to impact your claim so please visit our website and click around. So back to the Legacy system, so how do you actually go about the mechanics of requesting that the claim is reopened, Michelle?
Michelle: Sure. So anytime you’re essentially filing a new claim even if you’re reopening, even if it’s reopening it, so you have to file it on a 526 which is a VA form. You really don’t get the option- we often get asked, how do you know whether you are filing a claim to reopen or a new claim? You don’t really have an option. It’s either it’s a brand new claim and you’re filing a new claim or you’re reopening a previously denied case and VA will treat it accordingly based on the type of claim it is but you have to file. It’s a new claim form unfortunately, those are VA’s rules and regulations and it’s a 526.
Jonathan: So just to be clear, if your claim is denied and that decision becomes final, you can’t just say, it was a claim for service connection for a psychiatric condition and that’s denied and it was not appealed, that decision is final. You can’t just resubmit a claim for service connection for a psychiatric condition. You have to do so with new and material evidence. So who is it that actually determines because that’s a whole determination in and of itself, is this new and material evidence sufficient to reopen a claim? And who’s deciding that?
Christian: Well, first it would be at the Regional Office level. You’d get a new decision as to whether that evidence is in fact new and material and then it sort of goes on through the process of appeals as it would have when you were initially denied service connection.
Jonathan: So if they find it, if the adjudicator at the RO, for example, finds that it is new and material evidence, then they will decide that and then go forward adjudicating the merits of the claim itself.
Christian: Yes, absolutely. So that’s sort of the first box is, if it’s new and material evidence, you have to overcome that hurdle and then the adjudicator would then adjudicate the case on the merits, on the basis of that new and material evidence.
Jonathan: And Christian does a lot of work at the Court of Appeals for Veterans Claims and I imagine you’ve appealed Board decisions that found that the evidence wasn’t new and material and sufficient to reopen the claim.
Christian: Yes. Absolutely. Yes, a number of occasions.
Jonathan: So that issue in and of itself whether it’s actually new and material makes its way all the way up to the federal courts.
Christian: Sure. Unfortunately.
Jonathan: Yes. So what should you do if they, let’s just say, wrongly do not consider the evidence new and material?
Christian: You would just appeal it like any other denial. So it’s not a denial on the merits like it might otherwise be, but the Regional Office’s finding that it’s not new and material evidence must be appealed or else it will be final again. And so that way you have a right to appeal it or file your Notice of Disagreement and then you get a Statement of the Case, you file your VA 9 and then you get to the Board and that’s where my practice would come in like Jon was alluding to you before, and if they still find no new and material evidence then you have the right to appeal that Board decision to the federal court, the United States Court of Appeals for Veterans Claims just like any other denial.
Michelle: Yeah. It’s also really important to spell out in your appeal why is it you believe it’s new and material evidence because sometimes the VA adjudicators may miss it and it’s really important to point out why they should be considering it as such.
Christian: Absolutely. That would really help me, too. When I got the- if I and if and when I got the case, a short or some sort of explanation as to why this is new and material evidence will really help it make it clear to adjudicators.
Jonathan: So when you submit a claim to reopen, you can also submit a claim to reconsider?
Jonathan: What is the difference and why is one advantageous over the other?
Christian: Yes so they sound similar but they’re actually quite different. So a motion or to reopen a claim we’re talking at the Regional Office level that because you have new and material evidence. Reconsideration is a concept of asking the Board once they issue a decision to reconsider the decision that they have made and so that would be something that you would have to request at the Board after you get your final Board decision. So they sound similar but they’re quite different.
Jonathan: And are there reasons veterans might not want to reopen a previously denied claim?
Michelle: Yes, there are. Honestly, if you’re considered permanent and total for VA purposes, please leave it alone. You’re only most of the time doing yourself a disservice when you file a new claim because what happens is VA reopens possibly all your claims and you open the possibility of being reduced or getting your permanent rating taken away. So we always usually recommend for our veterans if they are permanent and total to stop. Just because unfortunately sometimes VA comes back the other way around and the rating you fought so long for unfortunately gets taken away.
Jonathan: So if – so I think you have to assess the situation.
Michelle: Yes for sure.
Jonathan: And by continuing to pursue a claim by filing to reopen it. In some cases when, for example, the veteran is considered permanent and total, you’re reopening the door for VA to investigate the severity of the conditions and which could result in a possible reduction or a severance. So Michelle is correct that we will often look at the picture and see if there’s going to be a likelihood of additional compensation. If not, we might advise to let them keep their permanent and total status which basically means VA is going to leave them alone and not schedule them for C&P exams, for example, to investigate the severity of their conditions because if there is evidence that something has improved or at least in VA’s opinion that it has improved, they will propose to reduce the ratings. So there is a risk. So you don’t want to just keep going at these things when the potential benefit just isn’t there and there is a risk that you will potentially lose a benefit. So does it matter what kind of new and material evidence you submit?
Christian: As long as it meets the standard. I mean, hypothetically I have had a case where a veteran was denied for lack of in-service injury, for example, an in-service event because he had alleged that that one particular injury had occurred, falling off a truck but he submitted a statement that said, “No, I didn’t fall off a truck. I fell during helicopter training.” And so that was sufficient but we had to go all the way to court about it but that is new and material evidence because it goes to how the veteran was injured in service and an in-service incident is one of three elements you need to meet for service connection and he was denied previously for lack of an in-service incident. So it could be that but again as we discussed before, if it’s a medical issue then you need to submit some sort of medical evidence and a veteran saying my knee condition is connected to my fall in service, that wouldn’t be sufficient under those circumstances to go to the medical sort of the connection nexus requirement.
Jonathan: And keep in mind, just simply submitting new and material evidence sufficient to reopen the claim is going – it’s not going to get you the benefit unless you have the merits so if –
Christian: Very true.
Jonathan: Just because you’re submitting new and material evidence doesn’t mean the claim stream is over with. You need to make sure that you have what you need to establish entitlement to service connection, for example, if that is the issue at stake. Let’s talk about effective dates. So in the diagram we looked at before, with the Legacy system, generally speaking when you file your claim that’s going to be when your effective date is as long as you preserve your effective date by continuously appealing. However, in the scenario that we’re talking about here there’s been a final decision so that claim stream is over. So you file a new claim to reopen with new and material evidence. What is the effective date?
Michelle: The effective date is usually, for the most part, it’s the date of the claim. Unfortunately, it doesn’t go back to your prior claim. There are some ways that that could be a possibility but for the most part, it’s the date you file your claim.
Jonathan: So it’s going back to – it’s essentially hitting the reset button?
Jonathan: On the effective date unfortunately.
Jonathan: So it does allow you to continue litigating the issue but you lose that effective date which obviously is potentially there’s a lot of money at stake if we’re going for compensation. What if you – so now we’re getting into kind of a tricky area that we have discussed in some of our Facebook Live videos, what about the effective date, how does it change if you submit evidence in the form of official service records?
Christian: Totally changes. It’s an entirely different ball game. So when the service records are submitted, you can preserve that initial claim. So like Jon was describing before, in a new and material evidence case that doesn’t involve service records, the date that you file your claim attaching the new and material evidence will be the date that VA considers for service connection purposes or for some sort of retroactive benefit. That would be the date but with service records you can go back to the date of your initial claim. If the service records were in existence at that time that the initial decision was made and then you submit them or they’re submitted, you can preserve, for lack of a better way to describe it, that initial claim date.
Jonathan: And what is the regulation that controls it?
Christian: 3.156. I think it’s C, yes.
Jonathan: That’s right. It’s an important one and it is, believe it or not, it is a regulation we cite too often and make a lot of arguments to bring effective dates back so it’s a good one to keep in your back pocket and so let’s talk about service records because obviously it seems clear but we have used some things for service records that have been deemed adequate for the purposes of 3.156(c) to bring that back so, what does VA consider a service record to be? Does the document have to actually reference the veteran by name?
Michelle: No, it does not. It just needs to be a service record that’s relevant to their claim. So think about, so I’m going to talk about one form, one document we use a lot is a CHECO report. It has to do with Agent Orange exposure in Thailand. It talks about Agent Orange exposure on some basis. It is not specific to any client but we use it a lot of times to bring cases back because it’s official service record. It’s just not that client’s or that veteran’s service record but it is service documents.
Jonathan: Another common one that we would use that definitely do not reference specific individuals often is the deck logs. So you get a copy of the deck logs. They can be used to be verify a stressor if you obtain those after the claim has already been denied, you submit them. Make your 3.156(c) argument and get the effective date brought back. What about something like declassified records that weren’t available when you first filed?
Christian: Yes, that’s specifically enumerated in subsection (c) as well. Those count.
Jonathan: And same applies if they were just forwarded to the DoD too late?
Christian: Yes by name. They don’t usually list these things out in the regulations that’s why I’m surprised but yes, that’s all right in the text of the regulation. They’re very clear about that.
Michelle: Yes because it did exist at that time. They just didn’t physically have it.
Christian: And that shouldn’t be on the veteran.
Jonathan: And can you appeal a reopened claim if you disagree with the decision again?
Michelle: Yes, you can continue appealing.
Jonathan: And so we already kind of covered this, you know, it’s important to just know that if you file to reopen and you get denied because the evidence isn’t sufficient to reopen the claim, you can appeal that issue as Christian indicated. You can appeal it all the way up to court. If they find the evidence sufficient to reopen but then still deny on the merits, you can also appeal that and submit additional evidence on top of the new and material evidence. So it’s not kind of a one and done thing where you submit your new and material evidence and that’s all that you can submit. You can continue submitting evidence under the Legacy system. RAMP operates a little bit differently and we don’t want to completely get into it but once you’re in that supplemental claim lane, it’s my understanding that you submit your new and relevant evidence and then have to let the record close for them to decide and then you could reopen by going back and submitting more new and relevant evidence to keep the hamster wheel going. So if we don’t have any other – if we don’t have any questions from the audience I think we can wrap up the discussion but thank you for joining us today, on how to reopen your VA claims. Again, my name is Jonathan Greene. I’m here with Michelle DeTore and Christian McTarnaghan with Chisholm Chisholm & Kilpatrick and thank you for joining us today.