38 Cfr 3.156

[grent]

Have a case before BVA on lost records recently found at NPRC.

CURRENT FACTS

Back in the eighties the VA knew about my injuries but based on a small note i think in my SMR gave me just a complete denial on claim i filed.

This was very scanty unclear one line information information in medical file

Located lost hospital records from NPRC St Louis MO recently

Then requested my old denied claim to be re-opened pursuant to 38 CFR 3.156 and the lost hospital records

had DRO hearing did 60 days form 9 now at BVA

the BVA judge is going to come in and say thats great you located your hospital records (thanks for your service) but it"s

re dun dant and not new or remarkable evidence

Im trying to fight them and argue that VA made a mistake because my one line smr entry of injry notation were used instead of my hospital records which were lost (but very in depth of my injuries) at the time but just found at NPRC these hospital records were not in my SMR because the hospital did not put them in their, when i left the military hospital usually the records are sent from the military hospital back to the service members smr at their duty station / command / that did not happen

the military hospital never sent them back to my command duty station how can i prove the VA did not use them in the prior rating decision i dont think that matters only the fact the VA new about it is what matters

so now im going to have to prove that the lost material / hospital records located at NPRC is new and material evidence and not redundant I plan on using an IMO as a nexus to state the conditions in the lost records are not only new and remarkable but relate back to my in service injury and had these records been made available to the VARO at that time i would have been given a 100% rating based on the VA ratings dealing with those kinds of injuries at that time

i have been told these nexus letter imo"s are a must for these type 38CFR3.156 re- open rior claim cases, with out it the BVA judge is going to rule in favor of VA and say the records were lost thats true (glad you found them) but the evidence is not new they are redundant

also can i submit current doctors report and can the nexus letter take all my current injuries and relate them back to my re-opened claim as SECONDARY which they are or can i only have the IMO NEXUS LETTER state what i asked for in the original claim

can you recomend any doctors who do these kinds of special re-open claim IMO NEXUS letters

should i use an IMO? / NEXUS??

WHAT I HAVE READ SO FAR ON THESE TYPE BVA CASES

i read a lot of appeal cases at the VA web site all the arrows BVA DECISIONS say yes yes over and over a lot of claims i see were denied

and the BVA judge's state over and over and over "i see no indication of "nexus" to re-open this claim"

the BVA Judge's will state yes the records were lost but not new or remarkable then they always say roughly the same thing

"I WE SEE NO NEXUS BETWEEN THE RETRIVED MATERIAL BACK TO THE ORIGINAL CLAIM" claim denied.

QUESTIONS FOR HAD IT

am i headed in the right direction ?

am i doing any thing wrong?

can i request the BVA to put my case on hold through my lawyer until i have everything i need, evidence wise ready to go?

i currently have a lawyer

Do i need to change anything here?

thks for your help if i'm doing anything wrong please let me know

Merry Christmas Happy New Year

[Hoppy]

“the military hospital never sent them back to my command duty station how can i prove the VA did not use them in the prior rating decision i dont think that matters only the fact the VA new about it is what matters”

i think in my SMR

Do you have a copy of your C. file? You don't sound real sure what evidence was used on the original denial back in the 80s. If the hospital did not send records to your command and the records were not used for your discharge exam and then later were not available for the VA decision, then finding these records could change everything. What they will be looking for is a determination by the military doctors that you had a chronic disability as a result of the injuries that occurred while in the military. If they do not find that your in-service injuries resulted in a chronic condition there is a good chance they will not consider the new hospital records material evidence. You have these records and you know what they say. If they are silent for chronicity in the military or if they say the symptoms resolved without residuals, that does not mean that you cannot have your condition service connected. What it means is that you will need to get the IMO whereby the Dr. reviews the new hospital records and links the injuries in the military to your current diagnosis. If you have post service treatment record that were not part of the file at the time of the original denial in the 80s then those also could be used as new material evidence.

“i have been told these nexus letter imo"s are a must for these type 38CFR3.156 re- open rior claim cases, with out it the BVA judge is going to rule in favor of VA and say the records were lost thats true (glad you found them) but the evidence is not new they are redundant”

You're right once a claim has been closed the new material evidence must raise a reasonable possibility that a nexus can be established. If the hospital records are silent for any issue stating chronicity or if they actually say condition healed without residuals I really doubt the DRO or the BVA will reopen the claim without a medical opinion with good supporting logic as to why your current condition is linked to the in-service injuries.

Without knowing what type of injuries we are talking about I cannot suggest a specific Dr.

[grent]

"the military hospital never sent them back to my command duty station how can i prove the VA did not use them in the prior rating decision i dont think that matters only the fact the VA new about it is what matters"

i think in my SMR

Do you have a copy of your C. file? You don't sound real sure what evidence was used on the original denial back in the 80s. If the hospital did not send records to your command and the records were not used for your discharge exam and then later were not available for the VA decision, then finding these records could change everything. What they will be looking for is a determination by the military doctors that you had a chronic disability as a result of the injuries that occurred while in the military. If they do not find that your in-service injuries resulted in a chronic condition there is a good chance they will not consider the new hospital records material evidence. You have these records and you know what they say. If they are silent for chronicity in the military or if they say the symptoms resolved without residuals, that does not mean that you cannot have your condition service connected. What it means is that you will need to get the IMO whereby the Dr. reviews the new hospital records and links the injuries in the military to your current diagnosis. If you have post service treatment record that were not part of the file at the time of the original denial in the 80s then those also could be used as new material evidence.

"i have been told these nexus letter imo"s are a must for these type 38CFR3.156 re- open rior claim cases, with out it the BVA judge is going to rule in favor of VA and say the records were lost thats true (glad you found them) but the evidence is not new they are redundant"

You're right once a claim has been closed the new material evidence must raise a reasonable possibility that a nexus can be established. If the hospital records are silent for any issue stating chronicity or if they actually say condition healed without residuals I really doubt the DRO or the BVA will reopen the claim without a medical opinion with good supporting logic as to why your current condition is linked to the in-service injuries.

Without knowing what type of injuries we are talking about I cannot suggest a specific Dr.

THE INJURIES:

TBI / ALREADY RATED

CERVICAL / ALREADY RATED

LUMBAR / ALREADY RATED

DAMGED BROKEN BONES / SOME RATED / SOME NOT

PTSD / ALREADY RATED

HEARING ALREADY REATED

TINNITUS ALREADY RATED

EYE SIGHT / ALREADY RATED

HEADACHES MIGRAINE ALREADY RATED

THEN THEIRS A BUNCH OF 0% PERCENTERS

SOME DEFERRED ISSUES

SOME NON SERVICE CONNECTED

CAN YOU RECOMMEND DOCTOR FOR NEXUS IME?

THANK YOU FOR ANSWERING MY QUESTION

MERRY CHRISTMAS HAPPY NEW YEAR

Edited December 13, 2009 by grent

[Berta]

Hoppy is right- newly discovered service records could change things considerably for you.

I posted a topic on this some time ago-search under Newly discovered Service Records.

Sometimes they can generate a more favorable EED along with an award.

For some reason the VBA a few years ago-clarified this situation.As I understood the VBA notice, there would be no need to file a CUE claim-even if the claim had been denied and not appealed.

It certainly can help any vet denied due to a lack of the inservice records that supported their claim-that show up years later.

Edited December 13, 2009 by Berta

[grent]

Hoppy is right- newly discovered service records could change things considerably for you.

I posted a topic on this some time ago-search under Newly discovered Service Records.

Sometimes they can generate a more favorable EED along with an award.

For some reason the VBA a few years ago-clarified this situation.As I understood the VBA notice, there would be no need to file a CUE claim-even if the claim had been denied and not appealed.

It certainly can help any vet denied due to a lack of the inservice records that supported their claim-that show up years later.

based on my ratings listed below can you recommend a ime / imo doctor that deals in 38CFR3.156 claims

also involving lost records involving claims that were submitted but VA did not take action on

do you have a web site to go to for an ime expert that deals with these claims on daily basis

thanks for the reply happy holidays

[carlie]

THE INJURIES:

TBI / ALREADY RATED

CERVICAL / ALREADY RATED

LUMBAR / ALREADY RATED

DAMGED BROKEN BONES / SOME RATED / SOME NOT

PTSD / ALREADY RATED

HEARING ALREADY REATED

TINNITUS ALREADY RATED

EYE SIGHT / ALREADY RATED

HEADACHES MIGRAINE ALREADY RATED

THEN THEIRS A BUNCH OF 0% PERCENTERS

SOME DEFERRED ISSUES

SOME NON SERVICE CONNECTED

CAN YOU RECOMMEND DOCTOR FOR NEXUS IME?

THANK YOU FOR ANSWERING MY QUESTION

MERRY CHRISTMAS HAPPY NEW YEAR

grent,

So is this the disability you are still working on and theses

newly discovered SMR's realte to ?

"DAMGED BROKEN BONES / SOME RATED / SOME NOT"

carlie

[hawkfire27]

I thought new and material evidence to re-open a claim was anything that states your disabling conditions that was not listed in the evidence list on the denial letter.

So by that understanding, if they did not use these records as evidence when they originally denied you. The proof you need that they didn't use these records would be the denial letter. If the records are on the denial letter then I am not sure....

Someone please correct me if I am wrong?

In 1996 we had my husband's effective date for his 100% retro payed to 1988, because we just happened to find his original PTSD diagnoses documents in some obscure medical center in Lubbock Texas where he went once for a dressing change on his way home to NM from North Carolina. For some reason this constitutes VA Waco transferring the most important papers in his mental health treatment to Lubbock. Weird stuff does seem to happen!

We only found out these papers were even there because we were gathering all his medical records at the time. The VA rep on the phone told us there were medical records at the Lubbock office. Thinking this was just the dressing change we got a hell of a surprise when we found these documents. We wrote a CUE letter and whammo retro in 3 weeks from application (1996). So it definitely can happen, the whole lost records thing.

Good luck you case :-)