On May 17, 2013, the Court of Appeals for Veterans Claims (CAVC) issued an opinion in Beraud v. Shinseki. The primary issue involved the application of 38 C.F.R. §3.156(b) and whether an intervening rating decision rendered an earlier pending claim final for the purposes of an earlier effective date of award. This is an issue that has application to a large percentage of the cases I handle so, below, I’ve briefly outlined the provisions of 38 C.F.R. §3.156(b). If a veteran carefully analyzes the entirety of their VA Claim record, this provision may entitle them to a large retroactive back benefit if there is a prior rating decision rendered unadjudicated under 38 C.F.R. §3.156(b). See generally Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) (“Consistent with this regulation . . . a claim [can] remain pending—even for years—if the Secretary fails to act on a claim before him.”).
The majority held that, consistent with prior precedent, “the Court holds that if a claim is pending by virtue of the submission of new and material evidence under 38 C.F.R. §3.156(b), the subsequent final adjudication on the merits of the same claim terminates the pending claim.” Judge Bartley dissented, essentially finding that the Regional Office’s failure to act on Mr. Beraud’s request to obtain his Naval service records rendered the prior rating decision still unadjudicated: “Mr. Beraud’s claim for an earlier effective date involves a specific regulation, §3.156(b), that requires continued pendency of a claim, even where there is a subsequent final denial, if the evidence has not been considered by the adjudicat[or] or appellate body.”
38 C.F.R. §3.156 And Earlier Effective Date of Award
The provisions of 38 C.F.R. §3.156 address three different issues regarding the submission of new and material evidence: (a) evidence submitted after a claim has been finally adjudicated; (b) evidence submitted during the statutory time period for filing an appeal; and (c) service department records submitted at any time after the VA decides a claim. With regard to new and material evidence submitted prior to a rating decision becoming final, 38 C.F.R. § 3.156 states:
(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.
Therefore, under regulatory language of 38 C.F.R. § 3.156(b), submission of new and material evidence within the time period to file an appeal renders that Rating Decision non-final until consideration of the new evidence. See Muehl v. West, 13 Vet. App. 159, 161-62 (1990) (concluding that where new evidence was received within the appeal period, RO’s decision was not a final decision, and the new evidence should have been considered in conjunction with the original claim).
If you have questions regarding an earlier effective date of award, please do not hesitate to contact me for a free consultation at sdirector@FRE-L.com or (732) 382-6070.