Important: This article discusses a legacy-claims rule only. 38 C.F.R. § 3.156(b) applies to pending legacy claims that are not under the modernized review system created by the Appeals Modernization Act (AMA). It does not apply to a decision governed by AMA. For an AMA decision, simply sending evidence to VA within one year does not preserve review rights; the claimant must timely choose an authorized review option.
Under the legacy system, new and material evidence received before the one-year appeal period expired had to be considered as filed in connection with the pending claim. That rule can affect whether a decision became final and may preserve an earlier effective date. Whether § 3.156(b) applies depends on the claim’s procedural history—not merely the date the claim was filed. Many older claims remained in the legacy system, but some claimants elected to enter AMA.
VA Must Address the Evidence in a Pending Legacy Claim
For a claim that remains in the legacy system, 38 C.F.R. § 3.156(b) requires VA to evaluate new and material evidence received before the appeal period expires and treat it as filed in connection with the pending claim. VA must make the required determination about that evidence before the earlier claim can become final.
For such a legacy claim, this can matter even when the claimant did not formally appeal. The evidence still must have been received during the applicable period and qualify as new and material. This is not the procedure for an AMA decision.
Why This Can Matter: The Effective Date
For a legacy claim, § 3.156(b) can preserve the original claim’s pending status even when no formal appeal was filed. If VA later grants the benefit, that unresolved pending status may support an effective date tied to the earlier claim rather than the later submission.
For example, suppose a veteran filed a legacy claim in January 2013, VA denied it in June 2013, and VA received a new examination or MRI in November 2013 that addressed the reason for denial. If that evidence was new and material and VA never made the required determination about it, the earlier legacy claim may remain pending. The complete procedural history and the nature and timing of the evidence must be reviewed before reaching that conclusion.
What Counts as New and Material Evidence?
Potential examples include:
- VA treatment records
- Private medical records
- A new VA examination
- A medical opinion
- Other documentation addressing an unestablished fact needed to substantiate the claim
The evidence must be new—not previously submitted to agency decision-makers—and material. By itself or with other evidence, material evidence relates to an unestablished fact needed to substantiate the claim. It cannot be cumulative or redundant, and it must raise a reasonable possibility of substantiating the claim. AMA supplemental claims use the different new and relevant standard.
Constructive Possession of VA Medical Records
A veteran did not always have to personally submit the evidence. In a legacy case, relevant VA-generated records could be constructively before VA even when they had not been physically placed in the claims file. Whether particular records were constructively received and qualified as new and material requires a case-specific review.
A Later Supplemental Claim Can Reveal an Older Legacy Issue
A present-day supplemental claim can expose an unresolved issue from an older legacy claim. If VA grants the supplemental claim but assigns an effective date based only on the current filing, the record should be reviewed to determine whether qualifying evidence received during the legacy appeal period kept the earlier claim pending under § 3.156(b).
The claimant or representative can use the review option available for the current decision and specifically identify the unresolved legacy issue. In some circumstances, the history may also raise a Clear and Unmistakable Error (CUE) issue, but CUE has separate and demanding requirements.
Critical Limitation: This Rule Applies Only to Legacy Claims Outside AMA
The Appeals Modernization Act (AMA) framework took effect on February 19, 2019. The modernized system generally applies when VA issued notice of the initial decision on or after that date, and it can also apply when a claimant elected to move a legacy claim or appeal into AMA. Under AMA, merely submitting evidence within one year does not invoke § 3.156(b).
A claimant who disagrees with an AMA decision must timely select an authorized review option:
- File a Supplemental Claim with new and relevant evidence
- Request a Higher-Level Review based on the existing record
- File a Board Appeal
The date the claim was filed is not the only question. The key issue is whether the decision and claim remained in the legacy system or were governed by AMA. If AMA applies, § 3.156(b) does not, and the claimant must follow the modernized review procedures and deadlines to protect review rights and potential effective-date continuity.
Final Thoughts
If VA received potentially new and material evidence during the appeal period for a claim that remained in the legacy system, VA had to address that evidence under § 3.156(b). An unresolved issue can affect finality and the proper effective date. This is a legacy-claims analysis; it should not be applied to an AMA decision.
Because the result depends on the claim’s procedural history, decision dates, elections, and the evidence itself, review the complete record before relying on this rule. If you think your legacy claim may involve this situation, please reach out.
