Many veterans who receive a negative decision from the VA don’t realize that they can appeal that decision. Some veterans unknowingly allow the deadline for appeals to run out. Later, if the veteran wants to pursue an earlier effective date, he or she will have to argue that the VA committed clear and unmistakable error (CUE) in the original decision. But the bar for a finding of CUE is high, and such claims are difficult to win.
If the deadline for appeal passes and the veteran cannot convince the VA of CUE, thousands of dollars of potential back pay could be lost.
After the recent decision in Emerson v. McDonald, however, a new means to get an earlier effective date or a decision revised has been explicitly identified by the Court of Appeals for Veterans Claims (CAVC). In Emerson, the veteran filed a claim for PTSD in 2000, which was denied. Even though the original rating decision did not address the veteran’s service records, he did not appeal. Later, the veteran sought to reopen his claim for PTSD in 2010, after the rules for proving combat stressors were relaxed. At some point after the veteran sought to reopen his claim, his service records were associated with his VA claims file. The CAVC found that the regulation in 38 CFR § 3.156(c) applied to the veteran’s claim. That regulation says that if service records are received by the VA after an unfavorable decision is made, the veteran can request that the VA reconsider its original decision.
Earlier effective date mistakes are often made with Agent Orange and PTSD claims. Due to the Nehmer litigation, Agent Orange cases have their own special rules allowing veterans to more easily appeal old decisions. Veterans suffering from PTSD often find that they have to appeal again and again in order to receive the benefits they deserve. Many Vietnam veterans suffered from PTSD for years before the VA would acknowledge its existence. When new service records are entered into a veteran’s C-file before the VA grants a favorable decision, the veteran may be able to collect benefits dating all the way back to his or her original claim.
What does this mean for you? If you have an earlier, unfavorable decision that has become final but did not consider your service records, you can submit those records and request reconsideration. Service records may include medals or other awards, service medical records or hospital records from a military hospital, personnel records including performance reports, medical board findings, Article 15 findings, and so on.
If you need assistance in requesting reconsideration of an older, unfavorable decision, please contact Berry Law Firm today. Our veterans’ law attorneys have been successfully appealing VA decisions for decades. Your consultation is free.
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