Military Service Records

[broncovet]

This is important, or critical, if you are seeking an Earlier Effective Date. Why? Because if you REOPEN the claim, the earliest date you can get is the date you reopened the claim. However, if there were missing service records on your decision, that means you can get a MUCH earlier date:

38 CFR 3.156 C:

© 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.

[Commander Bob]

This is important, or critical, if you are seeking an Earlier Effective Date. Why? Because if you REOPEN the claim, the earliest date you can get is the date you reopened the claim. However, if there were missing service records on your decision, that means you can get a MUCH earlier date:

38 CFR 3.156 C:

© 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.

Thanks for the info 'broncovet'.

We just had a question asked by our fellow member 'autum', that relates to this post. "Can Vet Have 2 C-Files?"

Edited June 25, 2011 by Commander Bob

[cooter]

This is important, or critical, if you are seeking an Earlier Effective Date. Why? Because if you REOPEN the claim, the earliest date you can get is the date you reopened the claim. However, if there were missing service records on your decision, that means you can get a MUCH earlier date:

38 CFR 3.156 C:

© 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.

You have a unique way of explaining scenario's, would you mind giving me one so I would know what I've read is in fact the way I read it. Thanks broncovet!

[Stretch]

This is great information that I have not seen before.

[Berta]

There has been much discussion on this part of the regs here before:

http://www.hadit.com/hadit_search_results.html?cx=partner-pub-7326217334650925%3A6g7avge0d6v&cof=FORID%3A11&ie=ISO-8859-1&q=Newly+discovered+service+records&sa=Search#1504

It is one of the most important parts of 38 CFR 3.156.

[Berta]

Just to add-I posted here the clarification years ago that is refered to in this decision- this is how this works:

http://www.va.gov/vetapp08/files5/0836450.txt

in part:

"The RO granted service connection for a stomach disorder

in a September 2005 rating decision, and established an

effective date of April 26, 2004, the date of receipt of the

claim to reopen."

Then under the clarified regulation as explained in this decision:

“ORDER

An earlier effective date of February 27, 1971, for the award

of service connection for a stomach disorder is granted.”

33 years of retro due to newly found service records.

[broncovet]

Cooter

Berta gave a pretty good scenario, but I will try.

Lets say you applied for benefits, and were denied. You did not appeal. 10 years later, you try again, and this time you succeed. You appeal the effective date, saying you are entitled to 10 years retro. You find out that the VA did not have applicable portions of your SMR's, so you reopen under 38 CFR 3.156 C. , SMR's.

The Veterans benefit manual does a fairly good job of explaining it. They actually have a chart, which explains that you can win an Earlier Effective Date by reopening with SMR's. You see, without the SMR's, you are unlikely to win an EED by reopening, because the earliest date you can get is the date you reopened the claim. So, If I applied for benefits in 2002, Reopened in 2011, then 2011 would be my effective date for retro. However, if I reopend un 38 CFR 3.156, (SMR's), then my effective date would be 2002. Thats an extra 9 years of Retro.

Very commonly, Vets think that if they dont appeal within a year, they have to file a "CUE". However, 3.156 says that if the VA denied you based on evidence in your SMR's, and you later find those SMR's, you can get benefits to when you first applied.

Berta is right, there has been discussion on this in the past. However, the significance went "right over my head" and I did not "get it" the first time, so I posted it again thinking maybe others may be entitled to Retro also.

My scenario fits right with 3.156 C...I was denied, and now, I am using my SMR's as an "ace in the hole". While I did appeal, even if my appeals fail, then I will reopen again under SMR's. I will have a whole new set of laws for which to appeal. Same fact basis, just new set of laws. You see, the CAVC and above are reviewing the application to regulations. The CAVC does not overturn factual determinations made by the RO or the BVA. Once those factual determinations are made, a higher court does not say..gee I dont agree with those facts.

I think many times Vets make that mistake. We argue that the RO or BVA made an improper factual determination, when we need to be arguing that they made an improper legal determination.