This favorable ruling from the Court of Appeals for Veterans Claims (CAVC) is brought to Veterans courtesy of one Phillip Cline – a Vietnam Vet who kept fighting on his VA claim and didn’t give up until he got what he was entitled to, and his attorney, Ken Carpenter. Ken is one of the best and brightest Veterans Disability attorneys out there…he’s been at this thirty (30) years, and has forgotten more about Veterans Benefits law than most attorneys remember.
Vietnam Veteran Cline filed a PTSD service-connection claim in January 1993. Not surprisingly, he was denied service-connection. Over the next 10-15 years, Cline attempts to reopen his PTSD service-connection claim, to no avail. Again, no surprise here. (In my experience, the VA doesn’t decide too many claims to reopen properly in the first place.)
The missing piece of the puzzle for Mr. Cline is proof of the PTSD stressor event: if he proves the stressor, he will have service-connection.
Fast forward to July 2005, when the VA received documentation from the Center for Unit Records Research (CURR) identifying the military unit Cline served in during Vietnam. With that information, the VA Regional Office was able to corroborate the PTSD stressor event and service-connect Cline’s PTSD.
Veteran Cline thought (correctly) that he was entitled to an Earlier Effective Date (EED) – dating back to his original claim in 1993.
What did he base this on? 38 C.F.R. 3.156(c) which states, in normal-people talk, that if newly discovered service records form the basis of an award of service-connection, the effective date is the date of the original claim.
[Don’t believe me? Next time you’re at a VA Regional Office, put on a T-shirt that says “I HEART 3.156(c)”. At best, you’ll get some dirty looks from the VA staff; at worst, you’ll get kicked out of that VA Regional Office.]
Because the VA hates 38 C.F.R. 3.156(c), and because it is so friendly to Veterans, the Secretary of the VA (who was that guy before General Shinseki?) amended it in 2006, to say that if the newly discovered service records didn’t exist at the time of the original denial, or if the Veteran didn’t cooperate enough to find those records, the earlier effective date (EED) rule wouldn’t apply.
Where the VA went wrong is they tried to apply the 2006 amendment to the 38 C.F.R. 3.156(c) rule to Veteran Cline’s claim – RETROACTIVELY. (This would be the equivalent of finding someone guilty of a crime before it became a crime).
After a lot of analysis of the issue and discussion of prior decisions that seemed related to the question, the Court of Appeals for Veterans Claims (CAVC) put the kibosh on the retroactive application of 38 C.F.R. 3.156(c).
If you like lawyer talk, click here to read the full opinion of the Court of Appeals for Veterans Claims (CAVC) decision for Veterans was issued in Cline v. Shinseki
Bottom line – if the VA Regional Office issued a decision in your claim (before October 6, 2006) which granted service connection based on newly discovered service records, check your effective date. If it’s not the date of the original claim for service-connection of that condition, you might have a claim to revise the effective date based on Clear and Unmistakeable Error (CUE).
Give an attorney that handles Veterans Benefits a call or send an email – its worth having a professional take a look at the decision.
The Attig Law Firm represents US Veterans in their disability benefits claims to the VA. The Attig Law Firm represents Veterans nationwide before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC).
For claims at the VA Regional Office level, the Attig Law Firm focuses its efforts on Veterans (and the Surviving Spouses of Veterans) in Texas, Arkansas, Colorado, Pennsylvania, North Carolina, and South Carolina.
If you are a Veteran (or a surviving spouse of a Veteran) and have a claim before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC), it is very important that you consider hiring an attorney with experience handling such claims. Even if you don’t hire the Attig Law Firm – find a reputable and competent attorney to help you with your Court of Appeals for Veterans Claims (CAVC) Appeal.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, there may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that the Attig Law Firm notes that each and every Veteran’s claim is different. Just because the Attig Law Firm was able to secure substantial past-due benefits for one Veteran or Veteran’s spouse does not mean or imply that we will be able to do so for you. In some cases, the Attig Law Firm may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultationwith a VA Benefits attorney.