Comment On Newly Discovered Service Records

[deltaj]

Recently I read Garrett Hayre v. Togo West and noticed that in the decision the court stated that the 1972 decision was not final for purposes of direct appeal. I then thought about 38 CFR 3.156 ( c ) and 38 USC 5108. I think newly discovered service records would permit a veteran to request that V.A. reopen a denied claim based on newly discovered service medical records. Anyone else agree with me on this?

Edited April 28, 2010 by deltaj

[Vync]

It sounds plausible as long as it is considered new and material evidence that the VA previously did not have when they made a ruling.

[Berta]

"I think newly discovered service records would permit a veteran to request that V.A. reopen a denied claim based on newly discovered service medical records. Anyone else agree with me on this?"

I agree fully but suggest Reconsideration Request (the best bet but CUE might work too) rather than a formal "re-open"

I feel the words Reconsideration Request in bold type at top of the page would generate more attention than stating this is claim to re open due to newly discovered service records.

The key is that they MUST be

"newly discovered".

These could be SMRS that VA had said in past denial were "burned in the St Louis Fire" but were not destroyed by the fire at all.

Or any service records VA failed to find in existence- that somehow turns up years later.

[john999]

Service records are something the VA should have had before them when they made their rating. This is something that could affect the effective date and % rating of an old decision I think.

[Berta]

You bet John- think of this- vet files claim within one year after service for a chronic presumptive disability such as found within the chronic legal presumptive list-and the SMRs are lost.

Decades later the vet files again as the chronic presumptive has gotten much worse and the SMRs are newly discovered.

That could mean Mega bucks for this vet.

For example:

"A psychosis is deemed a chronic disease by VA. 38 C.F.R.

§ 3.309(a). For chronic disabilities, such as a psychosis, a

presumption of service connection arises when the claimant

shows in-service incurrence and the same diagnosis after

discharge. See Groves v. Peake, 524 F.3d 1306, 1309 (Fed.

Cir. 2008). Furthermore, a psychosis which pre-existed

service and manifests itself to a degree of 10 percent or

more during service may be presumed service-connected. See

Splane v. West, 216 F. 3d 1058 (2000); 38 C.F.R. § 3.309(d);

67 Fed. Reg. 67792-67793 (Nov. 6, 2002)."

[pacmanx1]

What about if veteran files a claim and the claim is denied or granted and the veteran then files a claim for increase years later and the increase is granted and then the veteran finds evidence that should be in his/her file that proves that the veteran had the same symptoms or conditions as to when he/she first filed but was low balled. Since the veteran was awarded the increase shouldn't the veteran be able to apply for EED (Earlier Effective Date). Sometimes veterans have multiple folders (Volumes) and VA does not review the entire file, just what is current and veterans never file for EED because they don't know what is in their C- File. If the evidence was in his/her file and VA didn't review the entire file to grant the award then the veteran can go back and ask for an EED But again the evidence must have been in his/her file at the time of the first award. Also to show proof the veteran can use VA rating decisions to show that VA had the evidence at the time of the first award and omitted it purposely or neglected to add the evidence to deny or grant the award at a lower percentage.

if I am off please tell me.

Edited April 28, 2010 by pacmanx1

[john999]

I don't think you are totally off on this. If the VA had significant evidence in their file that they ignored during a rating then this may be a CUE. That is what I am contending myself. For instance, if you submitted a medical report from a private doctor and the VA excluded this from the record and made a decision without referrence to this strong evidence then I think this is a possible CUE. In my own case the VA had the same evidence for 20 years and then suddenly decided I had jumped from a 10% to a 30% rate for a bipolar condition. Ten years later I went from 30% to 70% with the same basic evidence. The difference was that I got private doctors to elaborate so perhaps they considered that new evidence. Evidence in my original rating the VA ignored would have made me 100% for the last 40 years. The VA buries such evidence so when you ask for an increase it is never referrenced again.