VA Duty to Reconsider Prior Denial Under 38 C.F.R. § 3.156(b) & (c)

Direct Answer

Yes, VA has a duty to reconsider the prior final denial under 38 C.F.R. § 3.156(c). The newly located service treatment records documenting acute lumbosacral strain qualify as "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim," triggering mandatory reconsideration [9]. If VA failed to fulfill this duty, the appropriate effective date for any resulting award is the date of receipt of the original claim or the date entitlement arose, whichever is later, under § 3.400 [1]—because the records are treated as having been constructively part of the record at the time of the original decision.

Analysis

Duty to Reconsider Under § 3.156(c)

Section 3.156(c)(1) provides, in operative language:

> "Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section." [9]

Three critical features of this provision:

1. "At any time after VA issues a decision" — The duty attaches regardless of whether the prior decision is final. It is not limited by the finality of the 2018 denial [9].

1. "Notwithstanding any other section" and "notwithstanding paragraph (a)" — The duty to reconsider is independent of, and overrides, the new-and-material-evidence standard of § 3.156(a) that otherwise governs reopening of finally adjudicated legacy claims [9]. No showing of "new and material evidence" is required.

1. "Will reconsider" — The language is mandatory, creating a duty, not discretion [9].

The Service Treatment Records Qualify

Section 3.156(c)(1)(i) specifies that covered records include "[s]ervice records that are related to a claimed in-service event, injury, or disease" [9]. The newly located records documenting in-service treatment for acute lumbosacral strain are directly "related to a claimed in-service event, injury, or disease" — namely the lumbar spine condition the veteran has been asserting since the original claim [9]. These records existed at the time of service but were unavailable to the C&P examiner in 2018, satisfying the requirement that they "existed and had not been associated with the claims file when VA first decided the claim" [9].

§ 3.156(b) Does Not Apply Here

Section 3.156(b) addresses "pending legacy claims not under the modernized review system," providing that 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" [9]. Here, the 2018 denial would have become final well before 2023; there was no pending appeal. Thus, § 3.156(b) is inapplicable, and the operative provision is § 3.156(c) [9].

Effective Date Analysis

When VA fulfills its § 3.156(c) duty to reconsider, the regulation treats the newly associated records as though they should have been in the file at the time of the original adjudication. Because the 2018 denial was predicated on the absence of evidence of an in-service event — the C&P examiner found no nexus precisely because the service treatment records were not in the file — the reconsideration effectively corrects the evidentiary deficiency that produced the prior denial.

The general effective date rule in § 3.400 provides that "the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later" [1]. When § 3.156(c) is triggered, the award is treated as flowing from the original claim, not from the date of reconsideration or the date the records were associated. Accordingly, the effective date should be:

• The date of receipt of the original (2018) claim, or
• The date entitlement arose (i.e., when the current lumbar spine condition was first disabling),

whichever is later [1].

This prevails over the default effective-date rule for supplemental claims (which would use the date of the supplemental claim), because § 3.156(c) operates "notwithstanding any other section in this part" [9], and the statutory and regulatory scheme treats the belatedly associated service records as part of the original record rather than as new evidence initiating a separate claim.

VA's Failure to Reconsider Does Not Defeat the Veteran's Effective-Date Entitlement

If VA received or associated the service treatment records in 2023 but did not exercise its mandatory duty to reconsider under § 3.156(c)(1), that failure constitutes a procedural error that does not diminish the veteran's entitlement to the effective date that would have resulted from timely reconsideration. The duty to reconsider arises by operation of regulation upon receipt of qualifying records; the effective date relates back to the original claim date because the records are treated as constructively part of the original record.

Key Points

• § 3.156(c)(1) imposes a mandatory duty on VA to reconsider a claim — even a finally denied one — whenever VA receives or associates "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim" [9].
• Newly located STRs for acute lumbosacral strain qualify under § 3.156(c)(1)(i) as service records "related to a claimed in-service event, injury, or disease" [9].
• § 3.156(b) is inapplicable because it governs pending legacy claims during the appeal period, not finalized claims [9].
• The effective date is the date of receipt of the original claim or the date entitlement arose, whichever is later under § 3.400 [1], because § 3.156(c) treats the unassociated records as constructively part of the original evidentiary record, not as new evidence spawning a new claim [9].
• VA's failure to fulfill the § 3.156(c) duty does not justify a later effective date; the veteran is entitled to the effective date that would have attached had VA discharged its regulatory obligation when the records were received.