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

[john999]

James

If in a 40 year old decision on a presumptive condition like psychosis the VA did not provide appeal rights is this a CUE. If you don't know that you have appeal rights then how can you appeal. In my own case I looked at my C-File and I had no appeal rights from my original claim 40 years ago where I got just 10% effective to day after discharge. I don't remember even making a claim. For old decisions I would advise those to check to see if they ever got their appeal rights. My decision was two pages long with letters denoting parts of the claim.

[Commander Bob]

I think that they can be considered new evidence on a denied claim under 38 USC 5108.

Yes, deltaj, I agree. I was just trying to make a point regarding EED.

[john999]

No matter how you look at it if the VA did not get SMR's then the vet could not get due process . The VA will not even accept those records directly from the vet, so it is their mistake. How can it be otherwise? It may not have been in front of the adjudicator but it should have been, so the eed should be protected. If you lined up all the vets who have been cheated on EED it would be a line to the moon and back.

'

[Commander Bob]

No matter how you look at it if the VA did not get SMR's then the vet could not get due process . The VA will not even accept those records directly from the vet, so it is their mistake. How can it be otherwise? It may not have been in front of the adjudicator but it should have been, so the eed should be protected. If you lined up all the vets who have been cheated on EED it would be a line to the moon and back.

'

**********

Edited April 29, 2010 by Commander Bob

[john999]

Bob

I see the moon but where are the vets? You are a joker, heh, heh. Does that represent once in a blue moon or blue moon over old Kentuck.