If Claim Lacks Evidence Does Va Read Or Serach Smr?

[cowgirl]

I have always wondered, first year out of service I submitted claim and no additional evidence; did have a C&P exam and VA clinic visits, but wondered "does the VA look at/or use SMR to validate claim issues?" I did not copy or present SMR pages or anything other evidence, got SC for some issues not related to exam. Denial for others, now diagnosed. I probably need to study on CUE. cg

[Vike17]

Cowgirl,

Of course the VA uses/looks at Service Medical Records to validate a claim. That's how they determine, for the most part, if there was an inservice occurance of an injury or disease.

One thing you have to keep in mind is that, if you filled a claim for compensation within one year of your discharge, your service medical records must show a "chronic" condition before service-connection can be granted. For example, let's say that you were in the service for 5 years and you whet to sick call for a left knee condition one or two times within those five years. This would probably not be considered "chronic," and will more than likely be denied service-connection. However, I have seen this sort of senario many times and the VA has granted service-connection regardless of being "chronic" or not because they were being pretty liberal.

Now, if you file a claim many years after being discharged and your condition wasn't "chronic" while in service, then you must show continuity of treatment for that claimed condition in order to be awarded service-connection. If you don't have continuity of treatment, then you will need an Independent Medical Opinion from your doctor stating that the current condition is somehow related to the inservice injury.

When you submit a claim for compensation and don't send in your Service Medical records along with the claim, the VA will obtain your records from NPRC ect... If you do submitt your records along with the claim, you substatially reduce the waiting time you'll go through to get a decision from the VA.

I hope this helps!

Vike 17

[cowgirl]

Thanks Vike, two things I have been thinking. First, it was good of VA to recognize and service connect items I didnt provide support for, however were in my SMR. Secondly, I am thinking my submitted items that I didnt appeal and were on the claim- may represent CUE. Again, I am studying and trying to figure it out. Does a successful CUE simply service connect or retro compensation as well? thanks, even after all these years I feel like a novice sometimes. cg

[Vike17]

Cowgirl,

The items that you claimed and were denied, and you didn't appeal within the one year time limit doesn't constitute CUE! Failing to appeal within the time limit is on you or your SO. The VA's hands are pretty much tighed.

If you mean that the VA didn't obtain and consider your SMR's when they denied your claim, that all depends on when you filed the original claim. If it was prior to the November 9, 2000, the claim had to be "Well Grounded" before the VA would assist the claimant. If the original claim was filed after that, the VCAA Act of 2000 said VA must make a reasonable effort to assist you in obtaining evidence to support your claim, such as SMR ect...

For example, let's say the VA received your claim and asked NRPC for your SMR's, but NRPC stated they weren't of record or they were destoyed the 1973 fire. Then the VA made another request and the received the same response. Then the VA asks you to forward any SMR's you may have in your possession, but you don't have any and tell this to VA. Then VA makes a decision on your claims without those SMR's, and subsequently denies your claims. This does not constitute CUE; the VA made a reasonable attempt to locate those SMR's. It wasn't VA fault that the SMR's aren't available. CUE is a very difficult hing to prove. CUE are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was a CUE must be based on the record and the law that existed at the time of the prior decision.

I hope this helps

Vike 17

Edited July 16, 2006 by Vike17

[Pete53]

Vike 17 you do excellent work. Your reasoning is backed up and easy to read and understand. I appreciate you being here to help Veterans very much.

Cowgirl Vike 17 has explained to you precisely what you need to do not to cure your problems. For CUE to work you must be able to show that the VA failed to assist you on your original claim. Its possible but hard to win.

I will add my personal example of what happened to me when I filed my claim in 1991. In 1968 I was drafted and on my induction physical no mention of flat feet. When I separated in 1970 flat feet was noted and when I filed my claim I asked for disability on flat feet. During CP I was asked if I had seen Doctor for it and I told them that I had bough expensive shoes to help and had problems and in 9 months I was awarded 30% for the feet. It did take over 4 and 1/2 years to get what I was after in first place.

So show the injury in service backed up with medical records, show problems with it since and a diagnosis now and bingo you will get it. If you don't have medical records that support the problem you absolutely have to get a Doctor's Opinion that links it.

[cowgirl]

Thanks for the feedback, as I am working dilgently on my claims, will see how it all unfolds and report back. I am thinking the paperwork reduction act doesnt apply to us veterans though. Gratefuly yours, cg