Way back in 1992, when I got out of the Army, I filed claims for knee and foot injuries from basic training. I had stress fractures, which would have eventually and healed and been fine with proper medical care, but I didn’t get that care because immediately after finishing basic at Fort Knox, I deployed to Saudi Arabia and then Iraq.
Fast forward to 1995: my claims were denied, because VA had lost my entire file, including my service treatment records. The case was dead. Even though I had ongoing pain (in fact, one of the sesamoid bones in my right foot had completely separated into two), I had no way of proving that it happened in service.
Decades later, after filing a privacy act request for my c-file, I discovered that in 2016 VA had found my service treatment records. Thanks to a provision in VA regulations, I was able to get that claim backdated all the way to September 1992. But that took a couple of appeals. Winning that case is one of the reasons why I do this work: too often I see veterans whose claims get screwed up by VA and they don’t get the benefits they earned.
The legal provision which allowed for backdating that claim is 38 CFR 3.156(c).
What Is 38 CFR 3.156(c)?
This rule is part of the VA’s regulations. It deals with situations where the VA discovers new records connected to a veteran’s military service after they’ve already decided on a claim. These new records might include service department records, like reports about injuries, medical treatment, or duty assignments, that weren’t considered during the original decision.
If these records are found and they’re important to the claim, the VA must reopen the case. Even better, the rule says that if these records show the veteran should have received benefits earlier, the VA must adjust the start date for payments to reflect when the veteran first filed the claim.
Why Is This Important?
Sometimes, a veteran’s disability or condition isn’t fully understood until later when new evidence comes to light. For example:
- A veteran files a claim for PTSD but is denied because there’s no proof of a stressor event in their records.
- Years later, military records surface showing the veteran was involved in combat or another traumatic event.
Under 38 CFR 3.156(c), the VA must look at the case again, as if the newly discovered records had been there from the start.
Key Points to Remember
- This rule only applies to official records that the VA or military had but didn’t include in the original review.
- It doesn’t cover private medical records or personal statements from the veteran, unless they lead to discovering the missing service records.
- If your case is reopened and benefits are awarded, you might get back pay dating to your original claim.
What Should You Do?
If you believe new service records related to your claim have been found, let the VA know immediately. Provide as much detail as you can about how these records prove your case.
These claims can be difficult and complicated. If you’re unsure how to proceed, consider getting help from an accredited agent or attorney.
If you think you may be eligible for reconsideration of your claim under 3.156(c), please fill out my case intake form and I can assess your claim.