Thursday, November 1, 2012

CAVC holds that 38 C.F.R. § 3.156(c)(2) cannot be applied retroactively

In Cline v. Shinseki, docket no. 10-3543 (Vet. App. Aug. 16, 2012), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.156(c)(2) is a substantive rule that could not be applied retroactively. This rule provides an exception to the rule that requires VA to reopen a previously denied claim when it receives new official service records that were not in the file when VA first decided the claim. 38 C.F.R. § 3.156(c)(1). This rule allows for an effective date as of the date of the original claim if the newly discovered service records ultimately form the basis of an award of benefits. The exception, which became effective in October 2006, states that the rule does not apply to records that VA could not have obtained at the time of its initial decision because (1) they did not exist or (2) the veteran did not provide enough information for VA to identify and obtain the service records.

In Cline, the veteran wanted an earlier effective date based on the submission of new service records. He submitted his request to reopen, provided information to identify the service records, and was awarded benefits prior to October 2006. VA determined that he could not be awarded an earlier effective because he had not previously provided sufficient information to identify the service records. The Court found that the retroactive application of § 3.156 was impermissible and remanded to the Board of Veterans’ Appeals to readjudicate the claim, applying the prior version of the regulation.

(Posted to September 2012)

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