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

[Commander Bob]

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?

The veteran should not be made to suffer due to the incompetence of the VA or DOD for not properly caring for, or reviewing the records... Old lost records are not new evidence. EED is in order. JMHO

[carlie]

Delta,

Check your PM's.

carlie

[JamesBreckenridge]

Berta, in the fact scenario you give, (the vet files within one year of release from active duty for a presumptive condition), and assuming the vet in fact HAS the presumptive condition, then the presence or lack of service treatment records doesn't matter; service connection should be made on a presumptive basis.

Now, if we're talking about a NON-presumptive condition (like Obstructive Sleep Apnea), the lack of service treatment records is a dealbreaker for getting service connection.

We get lots of recent vets who file a claim as soon as they get home from overseas and discharged. In some cases, their records are still in some container in the desert. We are supposed to make every effort to get them, but there's only so much you can do. In that situation, we place a memo in the file stating what efforts we'd gone to in order to get the records. That memo is listed in the evidence of the rating, since obviously the service treatment records won't be listed. In the situation I described, I would write something like this:

Your service treatment records are unavailable. A memorandum of unavailability of service treatment records has been placed in your file dated January 1, 2010. We have no evidence that you were diagnosed with obstructive sleep apnea in service. Private treatment records do show a diagnosis of sleep apnea with CPAP machine prescribed after service. Service connection is denied because there is no evidence that the claimed condition was incurred during service. If your service treatment records are located, this decision will be reconsidered.

So, if 20 years from now, that dusty crate of records makes its way back to us, those records will be associated with their files and distributed to the Regional Office that has the file. An EP699 (end product 699) will be established, and the file will land in my incoming pile with the records rubber banded to the folder, and it will be my job to look at the ratings in the file and see if what came in will change any of the ratings. Lo and behold, there is a diagnosis of obstructive sleep apnea during service, and we denied 20 years prior when we couldn't get the service treatment records. I would do a quick rating that goes something like this:

You originally filed a claim for service connection for obstructive sleep apnea on July 4, 2009. The rating decision dated May 1, 2010 denied your claim because your service treatment records were not of record at the time, and all efforts to obtain them had failed, and there was no other evidence of obstructive sleep apnea during service. On April 28, 2030, a special review of your file was made when service treatment records were received. Service treatment record dated August 1, 2008 showed a diagnosis of obstructive sleep apnea and CPAP machine was prescribed and you were told to follow up with your civilian doctor. Because all Federal records are constructively in our possession, the evidence would have supported a grant. Service connection for sleep apnea is established on a direct basis with an effective date of June 1, 2009, the date after discharge since you filed your claim on July 4, 2009 within one year of your release from active duty.

It wouldn't be a Clear and Unmistakable Error, because the previous rating specialist didn't make an error. He tried to get the records, but we just couldn't get them. What saves the effective date is the fact that the May 1, 2010 rating decision would be RECONSIDERED at such time in the future that the service treatment records come in.

Hope that helps.

(Edit: I also would have said some things about the evaluation and noted whether the medical evidence, most likely electronic VAMC treatment records, showed that the vet had been prescribed a CPAP machine for the past 20 years, but you get the drift I'm sure).

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)."

Edited April 29, 2010 by JamesBreckenridge

[carlie]

You originally filed a claim for service connection for obstructive sleep apnea on July 4, 2009. The rating decision dated May 1, 2010 denied your claim because your service treatment records were not of record at the time, and all efforts to obtain them had failed, and there was no other evidence of obstructive sleep apnea during service. On April 28, 2030, a special review of your file was made when service treatment records were received. Service treatment record dated August 1, 2008 showed a diagnosis of obstructive sleep apnea and CPAP machine was prescribed and you were told to follow up with your civilian doctor. Because all Federal records are constructively in our possession, the evidence would have supported a grant. Service connection for sleep apnea is established on a direct basis with an effective date of June 1, 2009, the date after discharge since you filed your claim on July 4, 2009 within one year of your release from active duty.

The main 38 CFR regs that supports granting the claim above would be 38 CFR - 3.156©.

carlie

[Commander Bob]

...Hope that helps.

First, please let me thank you for your most valuable participation in this fourm.

Question...What about PTSD in Vietnam vets' records. How does the VA correct all the misdiagnosed or denied or NSC ratings of forty years ago? How does the VA handle that scenario?

Edited April 29, 2010 by Commander Bob

[JamesBreckenridge]

First, please let me thank you for your most valuable participation in this fourm.

Question...What about PTSD in Vietnam vets' records. How does the VA correct all the misdiagnosed or denied or NSC ratings of forty years ago? How does the VA handle that scenario?

Assuming PTSD was diagnosed in service, it should be treated like any other condition diagnosed in service. If the veteran still has PTSD after service, then that's a chronic condition and should be service connected on a direct basis (which doesn't even require a confirmed stressor). If PTSD was diagnosed in service, but the vet doesn't have a diagnosis of PTSD currently, but does have some other mental disability such as anxiety disorder or something else, a medical opinion should be sought to clarify if the condition the veteran is currently diagnosed with is related to the symptoms of PTSD or any other events/diagnoses during service.

Of course, there's lots of room to muddy the waters there. What about pre-service stressors? What about post service stressors? What if we have a diagnosis after service and there's a confirmed stressor, but the doctor says that the in-service confirmed stressor is not the cause of the PTSD but a post-service stressor is! I have seen all sorts of scenarios, so don't take this as anything other than a gross oversimplification.

As for handling things that were denied 40 years ago that would be granted today... all I can say is that there is an appeal process. Many times I have been unable to grant an earlier effective date because the veteran let their appeal rights lapse; he had a chance to appeal and did not. If he did appeal all the way to BVA or CAVC, I can't overturn their decisions, and there are rules that determine what the effective date should be for a grant. I can grant a huge retro based on CUE or evidence that we constructively had and that would have changed a rating had the rating specialist had access to it, but as far as the previous decades of raters following the rules in effect at the time and reaching a conclusion different than the one I would reach today, there's not much I can do about that other than hope the vet puts in a claim for increase or submits new and material evidence that will reopen the claim; a grant with a recent effective date is better than just continuing to get nothing.