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

[grent]

AFTER TALKING TO OTHER VETS AND READING NUMEROUS BVA LOST RECORD APPEALS UNDER 38CFR3.156 IM GOING TO ASSUME THE WORST AND GET AN INDEPTH IME NEXUS FOCUSING ON CHRONACITY DURING AND TYING THE LOST RECORDS

WHICH VA NOW HAS BACK TO MY INJURY

THATS ONLY PIECE OF EVIDENCE I NEED OUT OF THREE REQUIRED TO WIN MY APPEAL AND IN FACT THATS WHAT THE SOC IS STATING IN AN AROUND ABOUT WAY OF LEGAL JARGON IN THE DENIAL SO MY LAWYER BROUGHT THAT TO MY ATTENTION WHILE I WAS LOOKING AT 38CFR3.156 DENIALS AT THE VA WEB SITE

I HAVE TO FIND AN IME WRITER WHO IS INEXPENSIVE BUT GOOD TRACK RECORD ON 38CFR3.156 RE-OPEN ISSUES

I KNOW WHAT I HAVE TO DO BEFORE THE HEARING NOW

ANY DOCTORS YOU MAY HAVE TO RECOMMEND PLEASE LET ME KNOW

MY LAWYER TOLD ME BVA HEARINGS ARE RUNING BETWEEN 14 TO 20 MONTHS WITH HIS LAW FIRM

TAKE CARE IM OFF TO GET HELP WILL LET YOU KNOW HOW I DO

AGAIN MERRY CHRISTMAS HAPPY NEW YEAR TO ALL

BEST ARTICLE I READ FROM HADIT IS THE ABRAMS HOUSE SUB COM REPORT ON SMC THAT WAS AND IS DEFINATELY A STOCKING GIFT FOR CHRISTMAS !! I WOULD LIKE TO SEE ABRAMS DO MORE REPRESENTATION BEFORE THE HOUSE VERY COMPELLING SPEAKER!!

[Hoppy]

Grant

If you feel they might claim the evidence was previously considered and the failure to rate it was eggregious, talk to the lawyer about a CUE. See below

hawkfire27

“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. 38

C.F.R. § 3.156(a) (2008).”

The last sentence in the above CFR states in order to be material it must raise a reasonable possibility of substantiating the claim. Interpretation of this sentence is often used by the BVA to determine the evidence added to the file although new is not material.

A PTSD claim would be very different than a claim whereby treatment records from the military for a physical injury were not available for a previous decision. That's because there is no requirement that you be treated for PTSD while in the military. If a medical report from the military for a physical injury was lost and later recovered and added to the file there is discretion in determining whether or not the evidence is material. Many times treating doctors in the military will note that the injury had healed without residuals. Additionally, if you are treated for a short period of time and the doctors do not address a final determination that the injury would result in a chronic condition, then the door is open for the adjudicators to claim that the evidence is not material. When this happens the VA will not schedule a C&P exam. As I said in the post to Grant this does not always cause the claim to be lost. The veteran would need to get a current report establishing the nexus.

When evidence is not listed on a decision it is not by necessity equated to a determination that the evidence was not previously considered. The first line in the above CFR does not make any reference to the evidence not being listed. It specifically states that the evidence was not previously submitted. If the VA reviews the file and sees that a report was date stamped and submitted prior to a decision they will consider the evidence as being reviewed whether or not it is listed. If evidence that was in the file is not listed or addressed in the reasons and basis of the decision and this evidence is overwhelmingly strong and clearly should have been addressed then your argument is not that a resubmission of the evidence should be considered new and material rather you should argue a cue. See the paragraph below. It was copied and pasted from a BVA decisions. Unfortunately, I did not copy the citation number. However, I'm sure any BVA case that involves Bell V Derwinsky will have this paragraph included in the decision.

In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule. That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision. Accordingly, as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision. The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.

[john999]

Hoppy

What about claims before 1992 and Bell vs Derwinsky where the VA had evidence in the file that was date stamped as received, but was never listed or discussed in the decision even though that evidence was very strong evidence? I was told that the way it works is that first a CUE is called and then all the evidence, including the evidence that was excluded, has to then be re-examined in to reach a new decision. If the VA rates you 10% and you have evidence from a doctor saying you are 100%, and the VA excludes the evidence showing 100% disability wouldn't that rise to the level needed for a CUE.

[Hoppy]

John,

We are in agreement a cue can be called at any time.

1992 was a long time ago. However, when I came on to hadit in 1996 this change in the law was talked about quite frequently. My recollection is that the issues only involved whether or not you could use the lack of discussion or listing of the evidence as a reason to reopen the claim to obtain an earlier claim date. Prior to 1992 the failure to list and discuss evidence would result in the reopening of the claim. At which time they would re-weigh the evidence of record at the time of the prior denial. After 1992 the only way to reopen the claim was with a cue or new material evidence. I think what the General Counsel was saying is that the argument to reopen or obtained an earlier claim date could be based on a cue both before and after the bell decision when a cue was justified.

The last line in my post talks about the General Counsel’s position that it is possible there was evidence of record that can altar the outcome of the case. Basically a cue can arise at any time if the evidence is strong enough. Remember a cue cannot be based on the amount of weight given to evidence. If the VA does not list the evidence and it is not included in any discussion in the reasons and basis for the decision then I would argue that it is not an issue of weight given at the time the decision was made whereby the rater failed to list and discuss the evidence. Thus, the VA by omitting the reports in question on the evidence list and by failing to discuss the evidence leaves the door open for a cue. With the door being open a rater adjudicating a later case could review the evidence that existed at the time of the prior denial and determine that the evidence is strong enough to have altered the outcome of the case and the issue of weight being given to the prior evidence is nonexistent because the amount of weight given to the evidence during the previous claim is nonexistent in the reasons and basis of the prior denial. I have never seen a case that used my prior argument. However, I would use it in a minute if I had the opportunity. Also, remember that a factual error can come into play. For that matter if the rater makes comments in the reasons and basis that are factual errors the door would be open for a cue even if the evidence was given weight for a prior denial. A factual error can involve confusion over dates, diagnoses or involve dismissing evidence because the rater was of the misperception the reports did not belong in the file. A factual error occurred in one of my denials and my service officer jumped all over it.

[Berta]

Here is the entire CFR on Newly discovered Service Records-

something that cannot be overlooked in many clams where records show up years after the fact.

PS Hoppy thanks for posting Bell V Derwinski again-this too is important info for all to have.

Reminds me of when VA told me they didn't have this or that and certain records "never" existed.

But those records showed up.

(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((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.

<a href="http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff93ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#PartTop#PartTop"> 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)

( 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]

§ 3.157 Report of examination or hospitalization as claim

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