38 C.F.R. § 3.156(b) / Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) / Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020)

38 C.F.R. 3.156(c) provides that any new and material evidence received prior to the expiration of an appeal period in the legacy system “will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.”  What does this mean?  And why does it matter?

Under the legacy system, VA would issue a Rating Decision, and the veteran would have one year to appeal.  If the veteran did not appeal, then the denial would become final.  The veteran could reopen the claim by submitting new and material evidence (check out our blog here to learn more about what constitute new and material or new and relevant evidence).  But based on 3.156(c) and the caselaw addressing that regulation, we now know that those denials did not actually become final if VA received new evidence within the appeal period.

In a case named Beraud v. McDonald, the Federal Circuit Court held that when VA receives new evidence, it “must provide a determination that is directly responsive to the new submission and that, until it does so, the claim at issue remains open.”  You’re probably thinking, but I didn’t submit anything new to VA within the appeal period.  But there’s actually another question you should be asking: did you receive treatment from VA for the condition within the appeal period?

In a case named Lang v. Wilkie, the Federal Circuit Court held that “VA treatment records created within one year of a rating decision are in constructive possession of VA.”  That means that you don’t have to submit the records to VA.  VA is assumed to know about the records just because you went and received treatment for your condition from the VA.

What does all of this mean and why does it matter?  Well let’s check out this example:

Let’s assume a veteran files a claim seeking service connection for a back condition.  The claim is denied in March 2003, and the veteran does not appeal the denial.  In February 2004, within a year of VA’s denial, the veteran receives treatment from a VA facility for his back condition.  That evidence is constructively before the VA, and VA is required to issue a new decision addressing whether that evidence is new and material.  Let’s assume that VA doesn’t issue a new decision.  10 years down the road in February 2014, the veteran decides that he wants to file a new claim for service connection for his back condition.  This time his claim is granted, but his effective date is the date of that new claim – February 2014.  Is that effective date correct?  It may not be.  The correct effective date might be as early as March 2003, which might mean a lot of additional benefits.

We know from 38 C.F.R. § 3.156(c) and the Federal Circuit’s holdings in Beraud and Lang that if a veteran receives treatment for a condition within a year of VA denying benefits for that condition, then VA is required to address whether those treatment records constitute new and material evidence.  Until that determination is made by VA, the original claim remains pending.  In our example, since VA did not address whether those February 2004 treatment records were new and material, the veteran’s March 2003 claim remained pending.  That means that veteran may be entitled to an earlier effective date for his psychiatric disorder.  There are other rules that impact the proper effective date for a claim, which you can read about here, so a Veteran is not guaranteed to receive an earlier effective date in these circumstances, but in many cases this rule can be very beneficial.