Simple Claim For Vietnam Injury Now A Cue?

[NSA-Saigon-ET]

Edited June 8, 2011 by NSA-Saigon-ET

[NSA-Saigon-ET]

NSA,

You posted,

"Conclusions

1. The veteran believes that the new and relevant information submitted verifies the claim of service connection for a right foot shrapnel wound. The rating decision of 2009 should be reversed to award service connected disability resulting from shrapnel wound to the right foot in 1969. The veteran is asking for a 20% rating.

2. The veteran believes also that the original rating decision of 1994 for shrapnel wound of right foot contains a CUE and that the effective date should be from the original filing date in 1994. From the analysis section of this document it is clear that all the documents of record during the 1994 decision were not included so that the decision would have been one of approval instead of denial had it not been for the error. The remedy for this error is to award the disability with an effective date from the original claim in 1994.

In regards to the 1994 CUE claim -

No information or medical evidence produced after the 1994 Rating Decision is to be considered in the claim for CUE.

Only the info/evidence of record (or supposed to be of record) at the time the CUE was made will be relevant.

(This of course,does not include anything from AD.)

In regards to the 2009 Rating Decision, I would point out the exact medical evidence of record that supports an evaluation of 20 %.

In my opinion you are making a big mistake by not having a formal, recorded hearing with the DRO.

Chance are you're going to have to wait 12 - 18 months for a hearing anyways.

JMHO.

I may reconsider having the local hearing be taped as I have waited a long time for this and don't want something to be missed for lack of a record.

Another issue I have is the award for compensation. The actual suffering and disability has diminished over the last 40 years. When I first filed the claim the pain and linping and foot fatigue was more prounounced than now. Also I am on SSDI now and can't work due to PTSD and MDD. The diagnostic code they are using in 5284 and it offers a 30, 20, 10 percent rating. The lowest is "moderate" and fits the condition now. I wear sandals 100& of time now and don't work so life is pretty sedentary. Years ago when I was working and had to wear shoes there was much daily pain and limping, blisters and bleeding into my socks. I would imagine a higher rating then of "moderate severe" or 20%. I don't know what they will want to do so will probably get a IMO from someone local and attach the report.

Thanks for the input.

[Berta]

"Have I missed something here? " Not necessarily but I always believe in frontal ,rear ,AND flank attacks-

what I mean is to use every single regulation (and every possible type of claim of argument )you can -to get a proper decision.

As I understand your posts (and I certainly could be wrong in my interpretation of your posts )

your rep should have considered this regulation-this is a newer 2006 version of it:

"(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(b)(1) of this chapter

Title 38: Pensions, Bonuses, and Veterans' Relief

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PART 3—ADJUDICATION

Section Contents

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

From 3.400 (q) 2006

AND

§ 3.156   New and material evidence.

top

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 claim. 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)

© 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 © 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 ©(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, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(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))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]

(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(b)(1) of this chapter

Title 38: Pensions, Bonuses, and Veterans' Relief

Browse Previous | Browse Next

PART 3—ADJUDICATION

Section Contents

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

From 3.400 (q) 2006

AND

§ 3.156   New and material evidence.

top

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 claim. 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)

© 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 © 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 ©(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, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(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))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]"

"Now decades later I find out that the records are at the NPRC and have been all along." I certainly think this is a valid CUE claim but the reg above-if this fits into your situation-would offer the same monetary result and- with a DRO hearing-it will show more impetus for the DRO to make the proper decision.I would ask the DRO to consider this regulation and then make sure it becomes part of the hearing record.

The VA has had my CUE claim since 2004. over 6 years. They often try to obfuscate these claims and confound and confuse the issues.They don't like to consider legal evidence sometimes.Their responses to me have been contrary to established VA case law and often ludicrous. But my CUE is with the AO people now as the new regs changed everything for me regarding that claim.

A hearing is a good place to help resolve these issues because (hopefully it will be taped)so much can get into the record that cannot be ignored (with a tape of proceedings)

I hope your POA rep will be there too.Why not run this 3.156 reg by your rep and see what he thinks.I could be all wrong on my interpretation of your posts.

However my CUE is now at another RO.

[carlie]

NSA,

As long as you are positive that you made VBA aware that there were medical records in existence

from active duty - my opinion remains that a claim of CUE is not warranted in your case.

I feel there is only a need to claim EED by way of 3.156 ©.

Here's a BVA case that explains it better than I can.

http://www4.va.gov/vetapp08/files2/0816833.txt

Not only did the December 2004 USASCRUR/JSRRC reply summary rely upon service records in existence at the time of the original denial of service connection, the USASCRUR (now JSRRC) summary prepared in December 2004 also corroborated the veteran's claimed stressors that were part of the record at the time of the original denial of service connection. Thus, this additional evidence falls into the exception created by 38 C.F.R. § 3.156© and the veteran's claim is, therefore, considered pending since the time of his original claim for service connection. See 38 C.F.R. § 3.156; Vigil v. Peake, 22 Vet. App. 63 (2008). The prior decisions on service connection for PTSD are not final as they did not include a review of all of the veteran's relevant service department records. Under 38 C.F.R. § 3.156 © these records are a basis for reconsideration of the claim and a basis for the granting of an earlier effective date .

[NSA-Saigon-ET]

xxx

Edited June 8, 2011 by NSA-Saigon-ET

[NSA-Saigon-ET]

Hi Berta & Carlie,

Edited June 8, 2011 by NSA-Saigon-ET

[NSA-Saigon-ET]

Edited June 8, 2011 by NSA-Saigon-ET