Retro Pay

[mortarman]

I have filed claim for t.b.i. Records from St.Louis, Mo were never requested by V.A. In 1970 i told examier that i had a conussion St.Louis stated no one every requested my records but me.Due you thank i will get retro back to 1970.I am know 100%p&t What kind of rateing due you think i will get.Polytrama told me to file?

[Testvet]

what date was your claim filed?

[mortarman]

Filed 4/5/10

[Josephine]

Hi,

Did you file a claim in 1970 and the Va not acquire your service medical records?

[Berta]

Reason we are asking what Josephine asked is if the claim was filed in 1970 and denied due to lack of the service records you do have a chance for retro back to 1970.

The regulation is posted here under a search for newly discovered service records.

I think I posted it again recently for someone.

I had similiar experience with my husband's SSA records.

VA never requested them from SSA (but said they did and SSA refused to send them)and I only found out by calling SSA that the VA had lied.

TBI is rated on residuals-

do you get 100% now or is this what you feel the claim will award?

Do you have other issues in the TBI claim too?

Do you believe the TBI or the concussion was fully documented in your SMRs?

Edited May 12, 2010 by Berta

[carlie]

I believe the reg Berta is referring to is 38 CFR 3.156 ©.

carlie

[Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2009]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR3.156]

[Page 187-188]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.156 New and material evidence.

(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)

[[Page 188]]

(b) 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 Sec. 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 Sec. 3.400.

Correction of military records. See Sec. 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]