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.

[broncovet]

Carlie....

Correct..38CFR 3.156 and 38 CFR 3.157 are different. This is why a Veteran can reopen with N and M OR

SMR's. A Veteran does not have to have BOTH N and M Evidence AND SMR's. Once the claim is reopened, the Veteran can submit other evidence also.

I did not find a case where the VA denied the Veteran from reopening based on 3.156 because the SMR's were not probative. This is why I think the Veteran can reopen with ANY missing SMR's. Then, with the claim reopened, he is free to submit any other evidence.

Like you, at first I thought the SMR's had to be probative to reopen. However, I think what they are saying is that ANY SMR is probative.

If you can find a case where the Vet tried to reopen on 3.156, but the VA denied it because the SMR's were not probative, then I will certainly retract my post. Otherwise, until or unless the courts rule otherwise, it would seen that a Vet could, indeed go to the doc to remove a splinter and if that SMR was lost, then found again, "evidence" door would be open, allowing the Veteran to submit evidence such as a IMO for PTSD.

[Guest]

bronco

I am not sure; maybe you can give an example.

New and Material evidence must be relevant to the claim sought. If the evidence is not new or relevant the claim cannot be reopened. Example: A veteran files claims for knee injury and GERD and both claims are denied. Later, the veteran's SMRs are found and the records show that the veteran was treated multiple times for acid reflux, vomiting, and diarrhea. The veteran then files a claim for GERD and is granted service connected. VA has no grounds to reopen the claim for service connected knee injury because the new evidence found, does not relate any material evidence to the claim for knee injury.

[BasehorVet]

I posted yesterday about my claim and thoughts about how 38CFR 3.156 should apply to give me an EED of 1985. Both claims, reconsideration of claim denial and application for TDIU went yesterday to the decision phase and today it skipped the notification phase and shows closed in ebenefits. This is still at the VARO since a NOD has not been filed, the NOD would have/or needs to be postmarked by July 11 2011. No update on ebenefits for statement of disability but also no statement on requirements to reopen claim. I have been told that my claim was marked as priority and was supposed to be hand carried through the rest of the process. How am I supposed to get to sleep tonight? grrr

[Guest]

d. Definition: Material Evidence

Material evidence is evidence that by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

To be considered material, evidence must be of sufficient significance so that there is a reasonable possibility that the new evidence, when considered in light of all the evidence, both old and new, would help prove the claim.

Newly submitted or secured evidence must be material to the reasons for the last final denial.

Note: "Last final denial" includes denials on any basis, such as lack of new and material evidence. To be final, over one year must have elapsed since the claimant was notified of the decision to disallow the claim.

Reference: For more information on material evidence, see Masors v. Derwinski, 2 Vet. App. 181 (1992).

M21-1MR, Part III, Subpart iv, Chapter 2, Section B

[carlie]

Carlie....

Correct..38CFR 3.156 and 38 CFR 3.157 are different. This is why a Veteran can reopen with N and M OR

SMR's. A Veteran does not have to have BOTH N and M Evidence AND SMR's. Once the claim is reopened, the Veteran can submit other evidence also.

I did not find a case where the VA denied the Veteran from reopening based on 3.156 because the SMR's were not probative. This is why I think the Veteran can reopen with ANY missing SMR's. Then, with the claim reopened, he is free to submit any other evidence.

Like you, at first I thought the SMR's had to be probative to reopen. However, I think what they are saying is that ANY SMR is probative.

If you can find a case where the Vet tried to reopen on 3.156, but the VA denied it because the SMR's were not probative, then I will certainly retract my post. Otherwise, until or unless the courts rule otherwise, it would seen that a Vet could, indeed go to the doc to remove a splinter and if that SMR was lost, then found again, "evidence" door would be open, allowing the Veteran to submit evidence such as a IMO for PTSD.

broncovet -

I am just going to address 3.156 and 3.157 does not belong in the same breath as 3.156.

You are twisting and distorting/ changing the context of the different parts of 3.156.

"Sec. 3.156 New and material evidence.

(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 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.

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."

NOTICE :3.156 a. - ONLY relates to re-opening of a claim with N&M evidence.

----------------------------------------

(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 Sec. 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.

NOTICE :

3.156 b. - ONLY relates to the submission and receipt of N&M evidence,prior to the expiration appeal period or appellate decision will be considered as having been filed in conjunction with the claim which was pending at the beginning of the appeal period.

3.156 b - has nothing to do with whether a claim is being re-opened or reconsidered and only addresses the issue of whether the N&M evidence will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

-----------------------------

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.

NOTICE :

3.156 c -

Is for consideration by itself © - it does not attach to 3.156 a or 3.156 b.

3.156 c - ONLY relates to, after VA issues a decision on a claim,

if VA receives or associates with the claim 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. (NOTICE: not re-open).

The example you have posted," it would seen that a Vet could, indeed go to the doc to remove a splinter and if that SMR was lost, then found again, "evidence" door would be open, allowing the Veteran to submit evidence such as a IMO for PTSD."

For the lost SMR's to be considered (your example above) would relate to 3.156 c.

How 3.156 c would apply in your example above is :

If after VA issued a decision, on a disability that related directly to the splinter or a residual disability from the splinter -

the veteran or VA found some SMR's

(that were not of record at the time this decision was made) that would negate/change or rebut that decision in some way,

then the VA is to reconsider the prior decision by factoring those SMR's (3.156 c) that were not of record at the time the prior decision was made.

The SMR's that relate to the splinter (and NOW of record) -

DO NOT OPEN AN

"evidence" door, allowing the Veteran to submit evidence such as a IMO for PTSD".

[broncovet]

Ok. I read 3.156c several times, and, I agree that 3.156a is seperate from 3.156c...and this is good. I am not trying to "distort" the regulation, but am still hoping I found a "loophole" that will enable Vets to resubmit evidence...ANY evidence...when the claim is reconsidered (you pointed out I used the word "reopened" and not reconsidered)

I also looked up the word "notwithstanding" used in 3.156c. While there are several definations of "notwithstanding" one used in the legal sense is here:

"Notwithstanding Definition:

In spite of, even if, without regard to or impediment by other things.

This defination supports your hypothesis, and mine, that 3.3156C is independent or "without regard to impediment" of 3.3156 A.

So, "independent of" 3.3156A, a Veteran can "have his claim reconsidered" due to missing SMR's that have been found.

If a claim is being "reconsidered" by the VA, this means that the Veteran has been denied, and he contends the VA did not consider all the evidence, so he is submitting more. The VA wont do a "reconsideration" unless there is evidence that the VA did not consider earlier. During the "reconsideration" the Veteran submits additional evidence that he feels was not available to the decision maker at the time of the decision.

In the case of opening a claim under 3.156A, the Veteran has to show the evidence is not only new, but is also material.

However, under 3.156 C, this evidence need not be new or material...it just needs

to be in the SMR.

The VA regulations state that a decision is based on the "entire evidence of record" that is, nothing should be left out. Since this is a REconsideration, it would also be based on the "entire evidence of record" to the exclusion of no evidence.

If the entire evidence of record indicates that there are disabilities not yet adjuticated, the Board is not free to ignore this evidence. This includes evidence ofany disability sought by the Veteran, not just the disability under immediate consideration.

Of course, i dont know, but it does appear that 3.156c could be interpreted to mean that the Vet can now submit any other evidence, as there appears to be no laws preventing it. JMHO.