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]

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

From the BVA decision above :

The RO assigned an effective date of October 9, 1998 for the grant of service connection for a low back condition, taking into consideration the previous final denials, to include the July 1996 Board decision. The effective date was based on the fact that the veteran's most recent claim to reopen service connection for the back disability was received on that date.

The veteran seeks an earlier effective date.

He argues that an earlier effective date is warranted on the basis that critical service medical records, which were instrumental in the ultimate grant of service connection for the back disability, were missing prior to September 1999. Ordinarily, the effective date of the grant of service connection for the low back condition would be October 9, 1998, the date that the veteran filed his most recent claim to reopen. See 38 C.F.R. § 3.400(q).

However, after having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the revised version of 38 C.F.R. § 3.156© governs this matter; therefore, the effective date for the grant of service connection for a low back condition is December 28, 1970, the date of the veteran's initial claim for a back disability.

The RO received additional service medical records in September 1999, which the veteran's Congressional representative's office obtained from the service department.

These service medical records pertain to an in-service hospitalization from October to November 1965 at a Marine Corps air station (the veteran served in the Air Force) for a sacro-iliac sprain.

These records relate to the claimed in-service event, disease, or injury, and were forwarded from the service department via the veteran's Congressional representative to VA (long) after the VA's original request for service medical records in February 1971.

Moreover, the record reflects that in the late 1980s and the early 1990s the veteran provided sufficient information to the RO for a search of these records. In March 1991, a search for 1965 clinical records from the USMC air station hospital was negative. In other words, the veteran is not at fault for the failure of VA to obtain these records earlier.

The outcome of this case turns upon whether the ultimate award of service connection was in fact based, at least in part, on the additional service medical records received in September 1999.

The report of the June 2002 VA examination reflects that the examiner reviewed these records in great detail. The examiner related the veteran's current low back disability in part to the injury in 1965 as documented in the additional service medical records. The RO in the January 2003 rating decision granted service connection based on the findings in the June 2002 VA examination report.

Accordingly, the award of service connection was made based in part on the additional service medical records received in September 1999. The remaining matter is the effective date to be assigned for service connection. As was noted above, the claim for service connection for a low back disability was initially denied in April 1971.

The previously decided claim for purposes of the amended 38 C.F.R. § 3.156© is the claim received by a VA hospital on December 28, 1970, which was forwarded to the RO the next day.

Therefore, the date of the claim is December 28, 1970.The final matter is whether the veteran is entitled to an effective date prior to December 28, 1970. The Board has carefully reviewed the record and can identify no prior claim, formal or informal, of entitlement to service connection for a low back condition. See Servello v. Derwinski, 3 Vet. App. 196 (1992) [the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits].

The veteran himself has identified no such communication of document.

In particular, the veteran left service in August 1966, and he did not file his initial claim for service connection for a back disability until over four years later, in December 1970.

Therefore, he is not entitled to an effective date for the grant of service connection as of the day after he was separated from service under 38 C.F.R. § 3.400(b).In summary, for reasons and bases expressed above, the Board concludes that an effective date of December 28, 1970 may be assigned for service connection for a low back condition. To that extent, the appeal is allowed.