Earlier Effective Dates and 3.156

Mitchell v. McDonald, Case Number 13-1245, was decided November 18, 2015 and concerns the earlier effective dates under 38 CFR Section 3.156 and the application of Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir 2014).

The veteran sought service connection for hearing loss in 1972.  In 1973 the RO denied the claim finding the current existence of a hearing loss has not been established.  He did not appeal the decision, but did submit a private audiogram in December 1973 which showed current hearing loss.  In 1999 the veteran sought to reopen his claim and the RO denied his request without listing his 1973 audiogram as evidence.  The veteran did not appeal the decision.  In 2007 the veteran sought to reopen his claim and the request was once again denied.  Once again the 1973 audiogram was not listed as evidence.

In 2008 the RO received medical opinions explicitly linking his hearing loss to his service, reopened the claim, granted benefits for bilateral hearing loss, and assigned a 100% rating from the date of the final application for benefits.

The veteran sought an earlier effective date of 1973 because the RO never addressed the private audiogram which was submitted 2 months after the RO’s first decision.

28 CFR Section 3.400(q) states the when new and material evidence other than service department records are received within an appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered.  A related provision, 38 CFR 3.156(b) states 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, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  In summary 3.156 means that when new evidence is submitted within an RO decision’s appeal period, the RO must consider it and prepare a supplemental statement of the case; failure to do so prevents the RO decision from becoming final.

The Court noted the Beraud decision and then stated “There is no dispute [the veteran] submitted additional evidence pertaining to his hearing loss claim within one year of the October 1973 RO decision that denied service connection for hearing loss.  Under  3.156(b), when a claimant submits evidence within the appeal period, the claim remains open until VA provides a determination that explicitly addresses this new submission.  Here, VA never issued a decision ‘directly responsive’ to [the veteran]’s December 1973 submission.  His August 1972 claim, therefore, ‘remains open.’”

Therefore, the Court remanded the matter to the Board to provide a determination responsive to the 1973 submission of the private audiogram and to assign an effective date consistent with the regulations.

Section 3.156 is a powerful device to reach back and gain an earlier effective date when the VA had failed to consider new evidence within the appeal time of an earlier decision. 

Decision by J. Bartley and Pietsch with dissent by J Kasold.