38 C.F.R. § 3.156

New evidence

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system.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.

(Authority: 38 U.S.C. 501)

(c) Service department records. (1) 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. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

Cross References:

Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006; 84 FR 169, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019; 86 FR 15414, Mar. 23, 2021]

Notes of Decisions

Cited in 677 cases (103 in the last 5 years), 1990–2026 · leading case: Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017).

Sort: Relevance Newest Treatment

Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). · cites it 14× “Kisor was eligible for an earlier effective date for his service connection under the regulation set forth at 38 C.F.R. § 3.156 (c). In contrast to 38 C.”

Sterling T. Rice v. Eric K. Shinseki, 22 Vet. App. 447 (Vet. App. 2009). · cites it 8× “In either case, 38 C.F.R. § 3.156 (b) may be applicable to the assignment of an effective date for an award.”

William Shade v. Eric K. Shinseki, 24 Vet. App. 110 (Vet. App. 2010). · cites it 10× “The appellant makes a single assertion of error: that the Board failed to properly apply 38 C.F.R. § 3.156 (a) to the evidence presented in his claim to reopen.”

Antonio Pacheco v. Sloan D. Gibson, 27 Vet. App. 21 (Vet. App. 2014). · cites it 28× “earlier effective date based on the submission of certain medical reports) and 38 C.F.R. § 3.156 (c) (allowing for an earlier effective date based on newly discovered service department records).”

& Alfred R. Young v. Eric K. Shinseki, 22 Vet. App. 461 (Vet. App. 2009). · cites it 18× “Alternatively, the appellant argues that the June 17, 1997, VRS report was new and material evidence that VA never adjudicated in conjunction with the September 1996 RO decision, in violation of 38 C.F.R. § 3.156 (b). Appellant's 2004 Reply Brief (App.”

Samuel L. Mayhue v. Eric K. Shinseki, 24 Vet. App. 273 (Vet. App. 2011). · cites it 17× “With regard to the earlier effective date for post-traumatic stress disorder, the Board applied 38 C.F.R. § 3.156 (c)(2) and found that, because Mr.”

Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021). · cites it 17× “” 38 C.F.R. § 3.156 (c)(1). The regulation further states that “[a]n award made based all or in part on the records identified by [§ 3.”

Elkins v. West, 12 Vet. App. 209 (Vet. App. 1999). · cites it 16× “38 C.F.R. § 3.156 (a) (1998). In Mario v.”

Trilles v. West, 13 Vet. App. 314 (Vet. App. 2000). · cites it 16× “1998), the matter must be remanded to the Board to determine, under 38 C.F.R. § 3.156 (1998), whether new and material evidence exists to reopen the matter.”

Flores-Vazquez v. McDonough, 996 F.3d 1321 (Fed. Cir. 2021). · cites it 13× “” 38 C.F.R. § 3.156 (c)(1) (2021). But an earlier effective date can only be granted if the award of benefits was “made based all or in part” on the newly obtained records.”

Fred J. Vigil v. James B. Peake, 22 Vet. App. 63 (Vet. App. 2008). · cites it 14× “Vigil argues that the Board erred in its determination that 38 C.F.R. § 3.156 (c) (2005), regarding effective date of awards, was not applicable in his case.”

Woehlaert v. Nicholson, 21 Vet. App. 456 (Vet. App. 2007). · cites it 5× “§§ 5108 , 7105(c); 38 C.F.R. § 3.156 (a) (2006); see Suttmann v.”

Show all 677 citing cases →

— 38 C.F.R. § 3.156(2) — 1 case

Marozsan v. United States, 849 F. Supp. 617 (N.D. Ind. 1994).

— 38 C.F.R. § 3.156(a) — 7 cases

Harger v. McDonald, 27 Vet. App. 938 (Fed. Cir. 2014).

10-42 014 (Board of Vet. App. 2016).

14-20 190 (Board of Vet. App. 2017).

Herrera v. McDonough (Fed. Cir. 2022).

— 38 C.F.R. § 3.156(b) — 7 cases

Buie v. Shinseki, 24 Vet. App. 242 (Vet. App. 2010).

Beraud v. McDonald, 27 Vet. App. 1402 (Fed. Cir. 2014).

Glenn H. Jackson, Claimant-Appellant v. R. James Nicholson, Sec'y of Vets. Affairs, 449 F.3d 1204 (Fed. Cir. 2006).

Fred A. Mitchell v. Robert A. McDonald, 27 Vet. App. 431 (Vet. App. 2015).

Jackson v. Nicholson (Fed. Cir. 2006).

— 38 C.F.R. § 3.156(c) — 3 cases

16-44 483 (Board of Vet. App. 2017).

Hooper v. Collins (Fed. Cir. 2026).

10-17 039 (Board of Vet. App. 2014).

— 38 C.F.R. § 3.156(c)(1) — 2 cases

Antonio Pacheco v. Sloan D. Gibson, 27 Vet. App. 21 (Vet. App. 2014). “earlier effective date based on the submission of certain medical reports) and 38 C.F.R. § 3.156 (c) (allowing for an earlier effective date based on newly discovered service department records).”

George v. Wilkie (Fed. Cir. 2019).

— 38 C.F.R. § 3.156(d) — 1 case

190518-5985 (Board of Vet. App. 2019).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.