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Service Medical Records

Guest jstacy


Guest jstacy

Hello to all. What is the relavence of service medical records? The reason I am posting is that I originally filed a claim for a head and neck injury, Hypertension, Migraine headaches in 1993. I had a NP C@P exam in 1994 with no service medical records. Of course the claim was denied. I filed to re-open the claim in 1997 and to my suprise the service medical records were there. They still denied the claim. I filed a NOD and it was also dened. The Letter stated that the SMR stated I had been hot with an unknown object. There were no complaints of treatment for Hypertension or Headaches.

In 2003 I filed to re-open the claims based on new evidence. I had received all the doctors reports over the years. This time I had my guns loaded and went for a C@P and got a great Doctor. She reviewed all the evidence. She stated my neck problems were related to that incident and I was awarded a whopping 10 percent. I was denied radicular signs in the same rating. I appealed that one and it is in the DRO right now.

Dec 05, I went for another C@P exam. I asked for an increase. I sat down with her again for over 3 hours. She found all the evidence again and also found the Hypertension and Migraine headache treatment in the military on the summary pages. I filed a CUE claim but my great VSO said I could not file a Cue claim based on new evidence. How can a SMR in their posession be considered new.

What advice Do I need . I want retro to the date I originally filed.

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Guest anfrnkie

i have problems like that to, i just got another ssoc in the ssoc i found a new 38,3;159,i found it to be very helpful 11 41 c might help ,doesn,t hurt to check it out

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I suggest that you read the constructive notice portion of the Bell court decision:

Bell V Derwinski 2 Vet App 1992.

The important constructive rule date is July 21,1992, for any claims filed thereafter.

Also access CUEs at the BVA to see why those that succeeded -did and why those that failed- did-

And use Section 20.1403 (a) (2005),38 CFR to manipulate the specific wording of this reg into the best advantage to support your CUE claim.

In part it states "Generally either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied." from this citation-

They mean VA when they say the Board-All VA regs apply to both-

If the CUE occurred in a BVA decision, the CUE claim is filed with the BVA-if in a RO decision- the CUE is filed with the RO.

There has been much discussion here at hadit due to CUE also.

Also the VBM from NVLSP has considerable information on Cue claims. I have posted at hadit links to successful ones.

There are three prongs of CUE for a collateral attack on a past decision.

1. the past decision muct have been unappealed

2. The VA committed legal error in that decision.

3. the legal error manifestly altered the outcome- IE more retro should have been paid but for CUE.

When I won my retro CUE claim through regional counsel- I had proven these three specific


1.The decision in 1998 involved a total offset of my DIC to a VA settlement until the settlement amount was paid.

2. The settlement itself and VA case law supported that a legal error had been committed.

3. The result was years and years of offset DIC they withheld but then sent to me to resolve the CUE.

I suggest to use the constructive rule in Bell to your advantage and to keep the actual CUE claim concise and on one page if possible. You can refer to and attach any other documents that would support.

I think you could CUE the decision that resulted from the 1997 re-open.

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Guest jstacy

This may work. I alslo looked up bell and I now have a case.

§3.156 New and material evidence.

(a) A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. (Authority: 38 U.S.C. 501, 5103A(f), 5108)

(:) 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 §20.1304(:wacko:(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. (Authority: 38 U.S.C. 501(a))

© Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The 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.

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