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]

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.veteransl...pley_09-197.pdf

bronco,

Again, in posting the above you are again,providing in-correct information.

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

These "two exceptions" you have referred to, in no way discuss or enhance, "the veterans ability to submit evidence",

it actually spells out and places some limitation, on the veteran ability to submit evidence.

These two exceptions you have referred to (from a dissenting opinion on Shipley decision) only relate to :

1)records that VA could not have obtained when it decided

the claim because either,the records did not exist when they decided the claim or

2) because the claimant failed to provide sufficient information for VA to

identify and obtain the records from the service department, the JSRRC, or from any other official source.

The below is quoted exactly from Shipley and is from Judge Hagel's dissenting portion, of the majority's opinion.

It simply does not support nor agree with your posted contention's.

"Thus, although there is little doubt that the document to which the regional office referred

was the Internet printout containing the April 1967 "Recommendation for the Presidential Unit

Citation" that was submitted by the appellant's counsel in November 2004, it is apparent that, rather

than attempt to obtain the original document, the regional office accepted the Internet printout as an

authentic service personnel record or a reliable copy thereof. The regional office's finding that the

Internet printout constituted a service personnel record was a finding of fact favorable to the

appellant that the Court may not unsettle on appeal. McClain v. Nicholson, 21 Vet.App. 319, 322

(2007). Accordingly, based on the facts found by the regional office, which were not disturbed by

the Board in the decision now on appeal, it cannot be disputed that § 3.156© was implicated

There are, however, two exceptions to the general principles of § 3.156©.

Both are contained in § 3.156©(2), which provides that the provisions outlined above do not apply

to records that VA could not have obtained when it decided the claim

[(1)] because the records did not exist when VA decided the claim, or

[(2)] 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.

Based on the factual findings made by the Agency decision makers, it is again apparent that,

as a matter of law, the first exception could have no applicability in the present case because the

Report of Battles was in existence at the time the regional office last denied the appellant's PTSD

claim in August 1996. Again, the regional office found that the Internet printout, referred to in its

June 2005 rating decision as a "Report of Battles," was a service personnel record. That document

clearly bears the date April 1, 1967. R. at 390. It is therefore evident that it was in existence at all

times relevant to this appeal.

This Court recently examined the second exception contained in § 3.156©(2) in Mayhue v.

Shinseki, 24 Vet.App. 273 (2011). Mayhue involved a veteran whose claim for post-traumatic stress

disorder had initially been denied because the claimed stressors were not verifiable with the

information he provided. 24 Vet.App. at 275. Years after this decision became final, his claim was

reopened and granted on the basis of service department records located by the U.S. Armed Services

Center for Research of Unit Records indicating that, during the period the veteran served in Viet

Nam, his unit had been stationed at a base that came under enemy attack. Id. at 275-76. Although

this stressor was not previously claimed by the veteran, the regional office conceded it and awarded

him benefits, but only as of the date he provided his unit information and dates of service in Viet

Nam in a post-traumatic stress disorder questionnaire, nearly six years after his initial claim had been

filed. Id. at 276.

On appeal, the Court concluded that the veteran was entitled to an effective date as of the date

he filed his original claim because the grant of benefits was based on newly associated service

department records, see 38 C.F.R. § 3.156©(1), and the information needed to obtain these

records—the veteran's unit number and dates of service in Viet Nam—had been part of the veteran's

claims file all along. Mayhue, 24 Vet.App. at 280. Accordingly, the Court explained that "VA's

failure to verify [the veteran's] stressor was the result of an administrative error in locating his unit

records," not the veteran's failure to supply sufficient information. Id"

In what you have continued to post, you are repeatedly saying that 3.156c allows for full reconsideration

and "re-opens" the claim, thus allowing some "evidence door to open",

which then "the veteran is allowed to submit evidence from a variety of source, such as VA med recs,

private health records or even Voc Rehab records."

This is simply not true nor is it supported at all by the regs, the VBM, the decision in Shipley or Judge Hagel's

dissenting portion of his opinion.

[Commander Bob]

~ Military Service Records ~

Edited July 1, 2011 by Commander Bob

[Berta]

Broncovet=please give us the VBM edition date and page number for the quotes you used from the VBM.

[broncovet]

Berta

Altho I am not sure how to tell the "page" of the VBM Manual, since my VBM is on DVD and the pages are not marked, the VBM defination of "reconsideration" which allows the Veteran to submit all sorts of additional evidence is in Chapter 10, Appendices, under Reconsideration process. I used my VBM on DVD and did a search on "RECONSIDERATION".

While I will be the first to admit that the word "relevant" in 3.156C weakens my position that the Veteran can use SMR's to win an EED even if the SMR's that are missing are for a different issue. However, enter the VA's responsibility to "liberally interpret" the Veterans filings, determining ALL potential claims developing them to their optimum" as stated in Roberson.

My premise is that the VA is not free to ignore these other issues, regardless of the document in which the Veteran "filed the claim" (that is, "specified the benefit sought") So, regardless of how the evidence got there...whether it was in SMR's or not, the Vet can use missing SMR's to "pry open" the case, and, once the case is open to reconsideration, the VA cant ignore other evidence.

I am not really trying to lead Vets astray, I am trying to sniff out a loophole to help Vets win Retro. The VBM really does say that a reconsideration allows the Vet to submit all kinds of evidence, and nothing there suggests that is limited to a single issue.

[broncovet]

I meant to edit the post not delete it...adding in the new Shipley CAVC case. While I cant remember exactly what I edited out, I do know that I am doing my best to keep the goal in mind of helping Vets and have absolutely no interest in discrediting or flaming anyone on this board. However, I probably let my emotions get the best of me and said some things I did not like, so I edited them out.

[broncovet]

Also applicable to 3.156c is this cool case where the Vet pried open his case for reconsideration with SMRs, and won retro back to 1970! 37 years of retro!

http://www.va.gov/ve...es2/0718715.txt

Edited July 1, 2011 by broncovet