M21-1 Manual / Part X, Subpart ii, Chapter 2, Section B

Revision Based on Receipt of Supplemental Service Records

M21-1, Part X, Subpart ii, Chapter 2, Section B

Overview

In This Section

This section contains the following topics:

Topic	Topic Name
1	Supplemental Service Records
2	Procedures for Considering Supplemental Service Records
3	Effective Dates Based on Receipt of Supplemental Service Records

1. Supplemental Service Records

Introduction

This topic contains general information on considering supplemental service records after the Department of Veterans Affairs (VA) issues a decision on a claim, including

considering supplemental service records
qualifying service records that warrant consideration under 38 CFR 3.156(c)(1)
service records that do not justify consideration under 38 CFR 3.156(c)(1), and
consideration of service records submitted by a claimant or representative.

Change Date

September 26, 2024

X.ii.2.B.1.a. Considering Supplemental Service Records

If the Department of Veterans Affairs (VA) receives or associates with the claims folder supplemental qualifying service records that existed and had not been associated with the claims folder when VA first decided a claim, VA will reconsider the claim under the provisions of 38 CFR 3.156(c). See M21-1, Part X, Subpart ii, 2.B.1.c for what are considered qualifying service records. Important:
If qualifying service records are received after VA initially decided a claim, VA must follow the procedures in M21-1, Part X, Subpart ii, 2.B.2.a, to reconsider the claim, even if a subsequent decision awarded service connection (SC) for the disability.
The reconsideration decision can include, but is not limited to, determining
SC of a previously denied issue, to include cause of death
an increased evaluation of a service-connected (SC) disability, or
entitlement to an earlier effective date for an SC disability.
References: For more information on the effective date rule that applies when records received under 38 CFR 3.156(c)(1) result in a favorable decision, see M21-1, Part X, Subpart ii, 2.B.3
when VA must reconsider the claim based on additional service records, see Emerson v. McDonald, 28 Vet.App. 200 (2016), and
end product (EP) control of supplemental service records, see M21-4, Appendix B.

X.ii.2.B.1.b. Qualifying Service Records That Warrant Consideration Under 38 CFR 3.156(c)(1)

Qualifying service records for the purpose of 38 CFR 3.156(c)(1) are any relevant official service records that (1) are forwarded to VA from the Department of War (DOW) or service departments any time after VA's original request for service records, and (2) have a reasonable possibility of helping to substantiate the Veteran’s claim. These may include, but are not limited to,

records related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, and
declassified records that could not have been obtained because they were classified when VA decided the claim.

Note: Relevant, in the context of 38 CFR 3.156(c)(1), means the service records relate to a previously decided claim element.Exceptions:

Records identified in M21-1, Part X, Subpart ii, 2.B.1.c are not qualifying records for the purpose of 38 CFR 3.156(c)(1).
As held in Morse v. McDonough, 994 F.3rd 1371 (2021), internal memoranda do not constitute official service department records for the purposes of applying
38 CFR 3.156(c) when they
- are produced by a VA employee, not a service department
- merely summarize information that is already of record, and
- do not contain new information from official service department records.

Reference: For more information on relevant records, see

38 U.S.C. 5103A, and
Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020).

X.ii.2.B.1.c. Service Records That Do Not Justify Consideration Under 38 CFR 3.156(c)(1)

The receipt of service records in the following scenarios will not trigger reconsideration under the provisions of 38 CFR 3.156(c)(1):
the service records
are not relevant, or
are duplicative of evidence already considered, or
as stated in 38 CFR 3.156(c)(2),
the service records did not exist when VA decided the claim, or
the claimant failed to provide sufficient information to enable VA to identify and obtain the service records (for example, the claimant failed to provide stressor information that would have allowed VA to fulfill its duty to assist in attempting additional stressor research).
Note: The exception created in 38 CFR 3.156(c)(2) became effective October 6, 2006.Important: Receipt of service records that do not warrant application of 38 CFR 3.156(c)(1) will still trigger review under the more applicable of
38 CFR 3.156(a) and/or (b), or
38 CFR 3.156(d).
Reference: For more information on duty to assist and when VA will refrain from or discontinue providing assistance, see
38 CFR 3.159(d), and
M21-1, Part I, Subpart i, 1.A.4.b.

X.ii.2.B.1.d. Consideration of Service Records Submitted by a Claimant or Representative

While supplemental service records from DOW require automatic reconsideration of prior claims, the submission of service records by a claimant or a claimant’s authorized representative does not constitute a claim unless they are accompanied with the required standard claim form identifying the claimed disability(ies).Use the table below to determine how to handle service records submitted by a claimant or their authorized representative.

If the submission ...	And the supplemental service records are ...	Then ...
does not include the required standard claim form with the service records	duplicative of evidence already considered	annotate the records, Duplicate service records reviewed, NAN (no action needed), and follow the instructions in M21-1, Part II, Subpart iii, 2.G.1.a, for requesting an application from the claimant.
	not duplicative of evidence already considered	follow the instructions in M21-1, Part II, Subpart iii, 2.G.1.a, for requesting an application from the claimant.
includes a substantially complete claim with the service records	duplicative of evidence already considered	annotate the records, Duplicate service records reviewed, an follow standard procedures to process the claim.
	not duplicative of evidence already considered	weigh the records submission along with all other supporting evidence in the claim, and consider entitlement to an effective date under 38 CFR 3.156(c)(3) for any awarded issues as discussed in M21-1, Part X, Subpart ii, 2.B.3.

References: For more information on

required standard claim forms, see M21-1, Part II, Subpart iii, 1.A.1.a
annotating evidence in the Veterans Benefits Management System (VBMS), see the VBMS Core User Guide
principles of weighing evidence, see M21-1, Part V, Subpart ii, 1.A, and
effective dates based on supplemental service records, see M21-1, Part X, Subpart ii, 2.B.3.

2. Procedures for Considering Supplemental Service Records

Introduction

This topic contains procedures based on receipt of supplemental service records after VA issues a decision on a claim, including

initial review of supplemental service records
required rating activity review of supplemental service records
processing service records that
- require reconsideration of a prior claim, and
- do not require reconsideration of a prior claim
resolving supplemental service record deferrals, and
rating decision language for benefits granted following receipt of supplemental service record.

Change Date

September 26, 2024

X.ii.2.B.2.a. Initial Review of Supplemental Service Records

Upon receipt of supplemental service records from DOW or a service department, automation will establish a tracking EP as described in M21-4, Appendix B. Claims processors must conduct an initial review of the documents to determine whether the records are duplicates.Does initial review of the supplemental service records indicate they are duplicates?

If yes,
annotate the service records in VBMS Duplicate service records reviewed, NAN, and
clear the tracking EP.
If no, refer the records to the rating activity for review.

Note: If the supplemental service records are submitted by the Veteran or their authorized representative, follow the guidance in M21-1, Part X, Subpart ii, 2.B.1.d.References: For more information on
EP control of supplemental service records, see M21-4, Appendix B, and
annotating evidence in VBMS, see the VBMS Core User Guide.

X.ii.2.B.2.b. Required Rating Activity Review of Supplemental Service Records

All supplemental non-duplicate service records received from DOW or service departments at any time after VA makes a decision on a claim shall be forwarded to the rating activity for review. The rating activity is responsible for determining whether the non-duplicate service records warrant a new decision and must take the actions outlined in M21-1, Part X, Subpart ii, 2.B.2.c or d.

X.ii.2.B.2.c. Processing Service Records That Require Reconsideration of a Prior Claim

Use the table below to process supplemental service records that require reconsideration of a prior claim.Example: VA receives supplemental service treatment records (STRs) that indicate the Veteran was treated by a private doctor while on leave during active duty. SC was previously denied in two separate rating decisions for the disabilities shown in those records, because the evidence at the time of those rating decisions did not show in-service incurrence. All of these issues must now be reconsidered in a formal rating decision as the additional service records relate to the basis for the prior denial.
If prior to issuing a rating decision, additional development is ... Then the rating activity will ...
needed complete a deferral in VBMS which instructs the claims processor to
change the tracking EP per the guidance in M21-4, Appendix B
perform specific development actions, and
solicit a claim for any chronic, unclaimed condition(s) shown in the supplemental service records, if applicable.
not needed
issue a formal rating decision on all issues that warrant reconsideration using the most appropriate EP from M21-4, Appendix B, and
input a note to authorization in the SPECIAL NOTATION field in VBMS-Rating (VBMS-R) to solicit a claim for any chronic, unclaimed condition(s) shown in the supplemental service records, if applicable.

X.ii.2.B.2.d. Processing Service Records That Do Not Require Reconsideration of a Prior Claim

When service records do not require reconsideration, the rating activity must annotate the service records in VBMS using the following format: NAN, [brief justification] (Example: NAN, not relevant to prior decision). Example: Military dental records are received from DOW after a previous rating decision awarded SC for hypertension, low back strain, and hearing loss. No formal reconsideration rating is required as the dental records are not relevant since they do not relate to previously decided issues.Additionally, the rating activity must use the table below to determine if additional action is needed for chronic, unclaimed condition(s).
If the service records ... Then the rating activity will complete a New Evidence/Needs Reviewed deferral in VBMS which instructs the claims processor to ...
contain a chronic, unclaimed condition(s) solicit a claim for the chronic, unclaimed condition(s).
do not contain a chronic, unclaimed condition(s) clear the tracking EP.

X.ii.2.B.2.e. Resolving Supplemental Service Record Deferrals

Use the table below to resolve supplemental service record deferrals.

If the deferral requires ...	Then ...
development actions prior to a formal rating decision	change the tracking EP per the guidance in M21-4, Appendix B perform the required development actions noted on the deferral, and refer the claim back to the rating activity when the claim is ready for a decision.
soliciting a claim for the chronic, unclaimed condition only	change the tracking EP per the guidance in M21-4, Appendix B, and solicit the claim as outlined in M21-1, Part II, Subpart iii, 2.G.2.e.
clearance of the tracking EP only	select Other Request from the ACTION drop-down menu enter To clear EP 699 in the resulting FREE TEXT field, and clear the EP.

Reference: For more information on creating tracked items, see the VBMS Core User Guide.

X.ii.2.B.2.f. Rating Decision Language for Benefits Granted Following Receipt of Supplemental Service Records

All rating decisions awarding benefits based on supplemental service records that a claimant or his/her representative submits (with a prescribed claim form, as described in M21-1, Part X, Subpart ii, 2.B.1.d) or a claims processor discovers in the Veteran’s electronic claims folder must contain the following language: “VA has received additional service records that were previously unavailable. The following decision is based on the additional evidence.”

3. Effective Dates Based on Receipt of Supplemental Service Records

Introduction

This topic includes information about assigning effective dates based on receipt of supplemental service department records, including

effective date of claims reconsidered under 38 CFR 3.156(c)
example of effective dates assigned under 38 CFR 3.156(c), and
October 2006 substantive rule change to 38 CFR 3.156(c)(2).

Change Date

February 5, 2024

X.ii.2.B.3.a. Effective Date of Claims Reconsidered Under 38 CFR 3.156(c)

38 CFR 3.156(c) allows for reconsideration of a claim based on receipt of new service department records that had not been previously considered with the claim. This regulation

serves to place a Veteran in the position he/she would have been had the VA considered the relevant service department record before the disposition of an earlier claim, which ensures that a Veteran is not denied benefits due to administrative error

only applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision, and

allows for revision of a prior claim with a potential assignment of effective date based on the date of receipt of the previously denied claim.
- Under 38 CFR 3.156(c)(1), the effective date is the later of
  - the date entitlement arose, or
  - the date VA received the previously decided claim.
- 38 CFR 3.156(c)(4) permits a retroactive evaluation based on new evidence from the service department clearly supporting the assignment of a specific rating over a part or the entire period of time involved, except as it may be affected by the filing date of the previously denied claim.
Notes:
- Any other effective date provision applicable to the previous claim shall also be considered. See 38 CFR 3.156(c)(3).
- In Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014), the Court of Appeals for Veterans Claims (CAVC) held that VA, under the provisions of 38 CFR 3.156(c)(1), must consider an earlier effective date only if VA awards benefits resulting from reconsideration of the merits of the claim. The earlier effective date provision of 38 CFR 3.156(c)(3) is applicable when VA receives official service department records that existed but were not associated with the claims folder at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not awarded in the previous decision.
- As noted in 38 CFR 3.156(c)(4), any retroactive disability evaluation assigned based on the receipt of additional service records must be supported adequately by medical evidence.
References: For more information on
- effective dates for claims based on receipt of additional service records, see Stowers v. Shinseki, 26 Vet.App. 550, 554 (2014)
- effective dates and reconsidering the merits of claims based on additional service records, see Mayhue v. Shinseki, 24 Vet.App. 273 (2011), and
- evidentiary standards applicable for consideration under
  38 CFR 3.156(c) and the corresponding effective dates, see
  - Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020)
  - Vigil v. Peake, 22 Vet.App. 63 (2008), and
  - Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014).

X.ii.2.B.3.b. Example of Effective Dates Assigned Under 38 CFR 3.156(c)

Facts: VA denied SC as “not incurred in service” for low back strain for a claim received on December 5, 2023. Although medical evidence at that time revealed the existence of “lumbosacral strain,” STRs did not reveal treatment in service. On March 3, 2024, VA received additional STRs from the service department that were not part of the claims folder at the time of the original decision that revealed treatment in service for a low back injury. Analysis: As the STRs existed at the time of the prior decision and the Veteran provided sufficient information to identify them at the time of the prior claim, and the STRs are relevant to the reason for the prior denial, the prior claim must be reconsidered. Assuming that a current disability and link to service exists, establish SC for the low back condition effective December 5, 2023, the date of receipt of the prior claim.

X.ii.2.B.3.c. October 2006 Substantive Rule Change to 38 CFR 3.156(c)(2)

38 CFR 3.156(c)(2) was added on October 6, 2006. This revision added the requirement that the claim may not be reconsidered under 38 CFR 3.156(c)(1) if the records could not have been obtained when the prior claim was decided because

records did not exist, or
the claimant failed to provide sufficient information to identify and request the records.

In Cline v. Shinseki, 26 Vet.App. 18 (2012), CAVC indicated that the plain language of 38 CFR 3.156(c)(2), when compared to the plain language of pre-amendment 38 CFR 3.156(c), created a bar to reconsideration based on newly associated service department records in particular circumstances where absolutely no bar previously existed. Thus, CAVC held that the addition of subsection (c)(2) was a substantive rule change. In claims filed prior to or pending at the time of the October 2006 addition of 38 CFR 3.156(c)(2), the version of 38 CFR 3.156(c) in effect prior to the regulatory revision should be applied. References: For more information on

the applicability of substantive changes to 38 CFR 3.156(c)(2) in October 2006, see Cline v. Shinseki, 26 Vet.App. 18 (2012), and
the regulation in effect prior to October 6, 2006, see historical 38 CFR 3.156(c).

Source: VA M21-1 Adjudication Procedures Manual, M21-1, Part X, Subpart ii, Chapter 2, Section B (U.S. government work, reproduced for reference). Browse all sections →