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.

[BasehorVet]

I spoke with a VARO employee today that told me that my claim would be decided soon because of the age of it sitting under administrative review at the decision board, been there since right before Nehmer hit the VA like a typhoon, Oct 7 2010. I had applied for TDIU on the same day I asked for a review of the last decision and it kept jumping in and out of decision phase back to development and then I would do a C&P exam and it would go back.

C&P examiner in 2010 said that even though I had been diagnosed with lumbar strain, spondylothesis, spondylosis and facet syndrome while on active duty that it was because I had bilateral first finger eversion and Livedo reticularis the day of the exam (7-2010), so this meant that I had a form of juvenile arthritis as a child and that the disease caused my problems instead of the physical spine trauma stated in my Line of Duty Determination in 1984 for the MEB.

Ebenefits states that in order for me to win, I must present new and material evidence that I incurred or aggravated an injury or disease during active duty.

I submitted a memorandum from the department of the air force dated last October 2010, that stated since my dd214 reads as discharged due to physical disability, entitled to severance pay and the fact that I appealed the formal PEB to the secretary of the air force (asked for a CT Scan) who concurred with the FPEB that I was permanently disabled with a 10% rating, that they would not reccomend that a dd215 be issued to correct my seperation code.

I also submitted 2 separate VAMC dermatologists reports, filed within 60 days from the claim denial, that state that I do not have Livedo reticularis.

I submitted buddy letter from the guy I enlisted under the old buddy plan, he retired from the USAF as a E7. He states that I never had a back problem while we were kids and that my disability began when I was injured in the line of duty and that I was medically discharged for that disability. We went through boot camp, tech school and shared a room at the barracks until the time I was thrown out.

I hope that this is enough evidence to give me an EED of april 15 1985, the day after my discharge since I had opened my claim while still on active duty, wish benefits at discharge was available back in 85.

[broncovet]

VYNC asked a question very relevant to this thread,

"How does the VA determine if records did not exist when a decision was made? Do they simply check the C-file to see if the records are present?"

Very good question. I think the VA does not "determine if records did not exist", but, rather, the Vet has to "figure that out".

The way the Vet "proves" this is to order a complete C file, and independently order all you medical records, and have them sent direct to you. Lots of times hospital records wont be included, if you were in the hospital during military service. So, try contacting the hospital.

This "trick" of not including your hospital records when SMR's are ordered, I think, results in many denials based on "there is no record you had ..... in the service"....even if you were hospitilized for the condition.

While 38CFR 3.156 C should over come this, remember it will have to be the Veteran who puts this entire puzzle together, meeting all the appeal deadlines.

Can you imagine getting a letter from the VA like this:

"We have newly discovered medical records based on your stay at Balboa Hospital in San Diego. These records confirm that our decision was wrong, that you did, in fact have a record of the condtion you applied for...therefore, we are awarding benefits retroactive to May 1, 1899."

....You are better off buying a lottery ticket than this happening any time soon. When you figure that out, then you have "weapons" with which to fight for your earlier effective date.

[carlie]

Can you imagine getting a letter from the VA like this:

"We have newly discovered medical records based on your stay at Balboa Hospital in San Diego. These records confirm that our decision was wrong, that you did, in fact have a record of the condtion you applied for...therefore, we are awarding benefits retroactive to May 1, 1899."

....You are better off buying a lottery ticket than this happening any time soon. When you figure that out, then you have "weapons" with which to fight for your earlier effective date.

Well, a claimant more likely than not - will not get a response that is as

warm and fuzzy as the one above - BUT, in just about 30 minutes I have found several

claims similar to the one below.

Citation Nr: 1105985

Decision Date: 02/14/11 Archive Date: 02/28/11

DOCKET NO. 09-28 979 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Petersburg,

Florida

THE ISSUES

1. Entitlement to an effective date earlier than June 30, 2006,

for the grant of service connection for posttraumatic stress

disorder (PTSD) with a 100 percent evaluation.

In light of the above, the Board finds that the Veteran is

entitled to an effective date of June 17, 1993, for the grant of

service connection for PTSD in accordance with. 38 C.F.R.

§ 3.156©(1).

http://www.va.gov/ve...es1/1105985.txt

[broncovet]

Carlie

Correct. But if you notice these are BVA, so this means the Veteran had to appeal this, and the RO did not do this on their own without an appeal by the Veteran. While the BVA is more thorough than the VARO, remember the BVA wont adjuticate ANYTHING unless the Veteran gives him jurisdiction by including it in the NOD.

This means the Veteran cant count on the VA to do this automatically.

[carlie]

Carlie

Correct. But if you notice these are BVA, so this means the Veteran had to appeal this, and the RO did not do this on their own without an appeal by the Veteran. While the BVA is more thorough than the VARO, remember the BVA wont adjuticate ANYTHING unless the Veteran gives him jurisdiction by including it in the NOD.

This means the Veteran cant count on the VA to do this automatically.

Well, if a claimant is arguing effective date - then they have at least already begun an appeal

as in filing a NOD with their VARO - which is a claimants first step into the appeals process.

None the less, EED due to 3.156 can also be granted at the VARO level.

I posted from the BVA search because they are the only ones on line (except Court) to be found.

If VARO decisions were on line, many of us would post regarding them

Of course we can't count on the VA doing things automatically - hell that would make sense.

About the only thing I have ever seen the VA do "automatically" relates to Nehmer claims.

IMO - 3.156 is a great reg for EED - if you feel it is applicable to your issues - use it

and nail them to the wall with it - if it's applicable they can grant an EED due to 3.156 - they did for me back to 1999 !

[broncovet]

I am hoping Carlie, that if some military service records are missing it wont matter whether or not the "missing" parts are "material" or not.

I am pretty sure this is the case. If there were missing SMR's, that are later discovered, the Vet can "reopen" the case and submit evidence...any evidence...whether it is in the SMR or not..that supports the claim. For example If the Vet went in for a splinter to be removed from his toe...and that was missing from his SMR record...then the "reopened claim due to missing SMR's" would allow the Veteran to also submit an IMO providing a nexus for his PTSD. I really dont think the missing records have to be "material". What do you think?

The reason I think this is because the "N and M" evidence is seperate from this. 3.156 C does not specify that the newly found SMRs are "material".

Edited June 29, 2011 by broncovet