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.

[Guest]

New and material evidence is not restricted to "SMRs" records only. New and material evidence can be current treatment records that relate or connect the current disability to the veteran's in-service disability claimed.

In order for evidence To be sufficient to reopen a previously

disallowed claim, it must be both new and material. If the

evidence is new, but not material, the inquiry ends and the claim

cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314

(1999). If it is determined that new and material evidence has

been submitted, the claim must be reopened.

Under the relevant regulation, "new" evidence is defined as

evidence not previously submitted to agency decision-makers.

"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.

When determining whether the claim should be reopened, the

credibility of the newly submitted evidence is presumed. Justus

v. Principi, 3 Vet. App.510 (1992). However, lay assertions of

medical causation cannot serve as the predicate to reopen a claim

under 38 U.S.C.A. § 5108(West 2002). See Moray v. Brown, 5 Vet.

App. 211, 214 (1993). 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. 38 C.F.R. § 3.156(a) (2010).

The evidence of record at the time of the last final denial in

November 2006 included the Veteran's and his family members' lay

statements, VA outpatient treatment records, private treatment

records, and service treatment records.

The evidence added to the record since the November 2006 decision

consists of VA outpatient treatment records, lay statements from

a witness who observed the Veteran's current knee problems, VA

examination results, and a private medical opinion that the

Veteran's right knee disorder is likely related to an injury in

service. As the evidence had not previously been submitted to

agency decision-makers and is not cumulative or redundant of

other evidence of record, the evidence is new under 38 C.F.R.

§ 3.156(a) (2010).

The new evidence supports the Veteran's contention that his

current disorder is related to an injury in service.

Specifically, the evidence contains a private medical opinion

indicating that his current right knee disorder is likely related

to an injury in service.

The new evidence, when combined with the evidence of record,

relates to unestablished facts necessary to substantiate the

claim, that of a current disability, in-service occurrence, and a

possible causal connection to service. Specifically, one piece

of the new medical evidence suggests a positive nexus between the

Veteran's current right knee disorder and his active service,

which would trigger the need for an examination if it were being

reviewed de novo basis. As such, it is found to be material.

Accordingly, the Veteran's request to reopen the claim for

service connection for a right knee disorder is granted.

http://www.va.gov/ve...es1/1105932.txt

P.S. 3.157 can be included by submitting hospital/treatment records.

Edited June 30, 2011 by pete992

[broncovet]

Yes, Pete..thank you. I am trying how to "figure out" or interpret this regulation.

The way I interpret it, there are 2 methods to reopen:

1. New and Material Evidence

2. Missing SMR's.

I also interpret this as we can reopen if we have N and M evidence OR if we have missing SMR's, not "And".

This would mean that the Missing SMR's would not have to be MATERIAL. That is, I dont think we have to try to prove the probative value of the missing SMR's.

[carlie]

Yes, Pete..thank you. I am trying how to "figure out" or interpret this regulation.

The way I interpret it, there are 2 methods to reopen:

1. New and Material Evidence

2. Missing SMR's.

I also interpret this as we can reopen if we have N and M evidence OR if we have missing SMR's, not "And".

This would mean that the Missing SMR's would not have to be MATERIAL. That is, I dont think we have to try to prove the probative value of the missing SMR's.

Keep in mind that from the get go -it is the responsibility of the claimant 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.

[carlie]

The legalities/regs. for 3.157 ARE COMPLETELY DIFFERENT from 3.156

and do not address the same situations in any way.

[carlie]

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.

NO - that is NOT how it works !

[carlie]

That is, I dont think we have to try to prove the probative value of the missing SMR's.

ALL EVIDENCE needs to be both Credible and Probative - to be weighed positively, in

the adjudication process.