Iris Response

[jstone1950]

While in vietnam (69-70), I was diagnosed with gastroenteritis and tension headaches. Subsquently, I caught hepititus A in Vietnam. Over another five year period while still on active duty, I was diagnosed on 3 other occasions with gastroenteritis and eventually remote depression. Since active duty in 1977, I've had many bouts of nausea and stomach problems. As recent as 2007 by a private gastro dr., I was diagnosed with evidence of corrosive gastroenteritis, GERD and acid reflux Grade II. Further, I was diagnosed last year by a VA psychologist with major depression. I made a claim for all the above issues in 1994 and was denied. 8 months ago i submitted a claim to reopen all these issues with new and material evidence (as stated above - private dr. and recent diag of depression); however, i haven't been scheduled for any C&Ps. Been told by VA that my claim has been in the rating board since Feb 18, 08. I was told this by the 800 # and IRIS. I'm also service connected at 0% for residuals of hepititus A. Does anybody have a take on any issues like this and/or my chances of this claim being reopened and approved or denied?

[Berta]

I replied to your post on July 21st- it is on page 2 or page 3 of this forum

[jbasser]

Jstone, what was the reason and basis the VA used for the deinial of your headaches. If it was unavailability of your records, I am interested.

You should check into this for there was a reg change 2 years ago that may allow for SC becausee the old VA trick of saying records were unavailable is now over ruled by regulation. If the records were not in the posession of the VA when they made the original decision, You may be awarded back to the original claim date.

J

Edited July 24, 2008 by jbasser

[jstone1950]

Jstone, what was the reason and basis the VA used for the deinial of your headaches. If it was unavailability of your records, I am interested.

You should check into this for there was a reg change 2 years ago that may allow for SC becausee the old VA trick of saying records were unavailable is now over ruled by regulation. If the records were not in the posession of the VA when they made the original decision, You may be awarded back to the original claim date.

J

When I first applied they stated that it was only an isolated incident and not a chronic condition and therefore didn't deserve to be service connected.

[shrlee]

Jstone, what was the reason and basis the VA used for the deinial of your headaches. If it was unavailability of your records, I am interested.

You should check into this for there was a reg change 2 years ago that may allow for SC becausee the old VA trick of saying records were unavailable is now over ruled by regulation. If the records were not in the posession of the VA when they made the original decision, You may be awarded back to the original claim date.

J

What reg change? Does it have anything to do with missing SMR's reportedly lost in the St. Louis Fire?

[Berta]

This might be what Jbasser means-

I dont have a link-this is in my Doc files-

(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.

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(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)

( 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((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]

[jstone1950]

I did an update to my claim inquiry to IRIS as to what were the specifics concerning the status of my claim instead of just a generic answer "your claim is in review" (i.e., preview, rating board, post review etc). All they did was send me the same generic answer. How can u get a more specific answer from them?