Simple Claim For Vietnam Injury Now A Cue?

[NSA-Saigon-ET]

Edited June 8, 2011 by NSA-Saigon-ET

[carlie]

NSA -,

Your CUE claim should be supported by 38 CFR 3.156 ©.

[Philip Rogers]

Sounds good to me. Should be a win, back to original date!!! jmo

pr

[jbasser]

Take the information you have and contact your congressman about the Purple Heart. You should get one.

J

[Berta]

I suggest you use this form ( DDS 149) to ask that the PH and any other possible other awards that do not appear on the DD 214 you have-to be issued to you on a DD 215.

You can put 'not applicable' to the injustice part.It would be good idea to refer to on the form somewhere that you have attached copy of the NPDB data as to the PH.

It might be a good idea to ask your COngressman for help -however ths form got my husband 3 or 4 awards on a DD 215 he didn't know he had.

Keep copy of the DD 149 you send them and get a proof of mailing it.

This s a very valid reason for a CUE claim. I also wonder if the topic here called "newly discovered service records" would also help your claim.

"Currently waiting for a local hearing at the Houston VARO on a NOD from the latest denial of benefits decision filed in 2007"

Do you have a vet rep sup[porting this?

dd0149.pdf

[Berta]

Discussions show up on this post I made some time ago but I can never find the actual post- here is the reg:

"(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(b)(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.

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)

(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 §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]"

[Berta]

gee that is the DD 149, not DDS 149 and the address you need to send it to is on the form.

This stuck out at me-

"The VCAA letter from the VA to the veteran requesting any additional information was not responded to as the veteran had nothing to add to his claim. He has already submitted detailed statements to the VA in the first place."

Sometimes the VA will even fail to send a response form (this caused a major VCAA violation regarding my claim)

Maybe this will help someone here-I strongly suggest that the response form be sent back even though the veteran has no additional evidence to send-and that they list and briefly describe the evidence that they have already sent to the VA.

VA told me I had not responded (to what they didnt send and did not list it as an enclosure)

and this ignored ALL of my evidence for 6 years.

BVA caught this major VCAA error I continually griped about (even to the H VAC) and the BVA awarded as my evidence mitgated the VCAA error anyhow.

I think t is imperative for them to get the flled in response form back-otherwise I think this is an easy way for them to deny if they ignore any evidence you had sent post VCAA letter receipt.

If they do not include the VCAA response form -tell them right away that they have committed a clear and unmistakable error in failure to adhere to the M21-1MR regarding this response form.

Edited October 22, 2010 by Berta