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.

[carlie]

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.

No - 3.156c does not ALLOW AT ALL, "that the Vet can now submit ANY other evidence" !

Only evidence that specifically relates as outlined in the reg will be allowed in this reconsideration.

Such records include, but are not limited to:

3.156c (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.

[carlie]

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.

bronco,

The only reason I am continuing to post the ACCURATE information on 3.156

is not to waste my time playing tit for tat with you -

BUT TO CORRECT - the mis-information you continue to post, that leads other's that read it, astray.

You have a habit of posting your mis- interpretation of some regs, in ways that are not to be applied,

in the way that you post.

SMR's that were not of record, nor factored into a prior decision and the claimant wants them considered under 3.156 c,

must be probative or they will not be afforded any weight.

NO - they are NOT AT ALL "saying that ANY SMR is probative."

Not all SMR's will meet the definition of probative evidence.

Definition:

Probative evidence - must be relevant to the issue in question, and have sufficient weight,

either by itself or in combination with other evidence, to persuade the decision-maker about a fact.

3.156© 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;

[broncovet]

I checked the VBM's defination of "reconsideration process". While I cant reprint what the VBM says, hopefully either you have a VBM or you can borrow others. In the reconsideration process, the original decision makers supervisor reviews the case, and the Veteran is given an opportunity to submit additional evidence..from several sources.. That is, when the case is up for reconsideration, the Veteran is allowed to submit evidence from a variety of sources, such as VA med recs, private health records or even Voc Rehab records.

[broncovet]

Utilizing the VBM defination of reconsideration, as applied to 3.156c, the Veteran would indeed be able to submit "other evidence" in the event of SMR's missing but then found. The VBM also uses the term "reopened" in reference to a reconsideration also suggesting that, in the reconsideration state, the claim is "reopened" and this opens the door to other evidence.

[broncovet]

The case of Shipley vs Shinseki delves deep into 3.156C,

Pointing out there are only two exceptions to the Veterans ability to submit evidence when new SMR's are found.

Shipley is here:

http://www.veteranslawlibrary.com/files/CAVC_cases/2011/Shipley_09-197.pdf

Edited July 1, 2011 by broncovet

[carlie]

Deleting what you post - isn't playing nice, or fair to the integrity of the thread.

I happen to be very vet friendly, just the opposite of what you deleted.

bronco - when are you going to realize - the argument is in the correct interpretation

and understanding of the reg, and not with you personally.

BTW - I have plenty of my own copies and CD's of the VBM and it does not support the

following contentions, quoted below that you have posted in regards to 3.156c.

"I checked the VBM's defination of "reconsideration process". While I cant reprint what the VBM says, hopefully either you have a VBM or you can borrow others. In the reconsideration process, the original decision makers supervisor reviews the case, and the Veteran is given an opportunity to submit additional evidence..from several sources.. That is, when the case is up for reconsideration, the Veteran is allowed to submit evidence from a variety of sources, such as VA med recs, private health records or even Voc Rehab records."

OR

"Utilizing the VBM defination of reconsideration, as applied to 3.156c, the Veteran would indeed be able to submit "other evidence" in the event of SMR's missing but then found. The VBM also uses the term "reopened" in reference to a reconsideration also suggesting that, in the reconsideration state, the claim is "reopened" and this opens the door to other evidence."