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.

[john999]

If it is not in the C-File then the VA does not have it. If there is some hospital report that is part of your SMR's and it is not in your C-File then it was not considered in the decision. That is my theory of the case. If there is evidence in your C-File and the VA does not refer to it or list in evidence then they did not consider it. That is my other theory.

[Commander Bob]

If it is not in the C-File then the VA does not have it. If there is some hospital report that is part of your SMR's and it is not in your C-File then it was not considered in the decision. That is my theory of the case. If there is evidence in your C-File and the VA does not refer to it or list in evidence then they did not consider it. That is my other theory.

I agree 'john999'. It compels vets to get copies of all files. It just triggers some vets to review them. We have to overcome that, if we are going to prevail.

Edited June 28, 2011 by Commander Bob

[john999]

Bob

In my claim the BVA did agree that since the VA never referred to or listed certain evidence in my file then it was not considered in my original rating. However, they come back with "Well, even if it was not considered it would not have mattered anyway". They have done this in other heavy claims that went to federal court. They just kill you with time. I read a claim where records were altered after a decision and the poor vet still ends up in federal court. This guy Cushman has been fighting this case since 1980 and is still in remands. I mean the VA fakes medical evidence and all the guy gets is a remand back to the same rotten RO where the fraud took place. Nobody will step up and award this vet 20 years of TDIU retro. They would rather wait him out until he dies and then wait out his widow. The VA has gotten away with ignoring,faking and altering vital evidence for years. Unless the vet examines their file they will never know. Cushman was turned down for SSD because he used altered records in his SSD claim and did not know the records had been faked to kill his TDIU. The BVA, COVC and Federal Court know this and yet he still has not gotten his retro. If you know the VA has done something like this I would hire a lawyer because they will try and wriggle out of it. I am waiting now on a remand because the BVA used the wrong rating schedule in denying my CUE. I will wait months and they will use the right schedule and still deny my CUE. This is all to kill time in hopes I die.

John

[Commander Bob]

Bob

... If you know the VA has done something like this I would hire a lawyer because they will try and wriggle out of it.

... John

I have seen some of my military service hospital Dr. & nurse's notes & SMRs, from 1968, that support my claim. Plus a couple of years of SMC, that I let ride.

Excellent advice. I hear you, John, I will need a lawyer to take it all the way for me.

I remember the days when a lawyer could not charge more than $10.00 to take a claim. We were at the mercy of VSOs, to do us the favor, back then.

I hope other vets in need, use this legal option.

[john999]

Bob

If they really owe you lots of retro see how it goes but if you see that they are not going to grant the claim no matter what then get the lawyer. When you present them with clear cut evidence and they still deny you know they are afraid. No VARO wants to grant 40 years of retro for a mistake.

[Guest]

There are times when VA will list evidence in the evidence used section or they may state minor evidence in the reason and bases section and completely overlook pertinent evidence that would favor the veteran's claim.

More than likely the local VARO/DRO will not review all the evidence, so make sure when you file your VA form 9, make copies of those specific records and attach them to it. Also make sure that you state or list those documents on the form 9 just in case they happen to disappear. Keep in mind the more volumes your C-file has the less likely VA will review all your evidence.

In your form 9, I would try to write in a chronological order as best as I could, so VA could follow the symptoms and treatment record so it should be a "no brainer". But in some cases the claim would still have to go to BVA to be granted.