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Cue In Failing To Apply The Provisions Of 38 C.f.r. § 3.156(C) For Effective Date

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carlie

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http://www.va.gov/vetapp12/Files6/1242601.txt

Citation Nr: 1242601
Decision Date: 12/13/12 Archive Date: 12/20/12

DOCKET NO. 11-28 934 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to an effective date earlier than June 28, 2005, for the grant of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, to include whether there was clear and unmistakable error (CUE).

2. Entitlement to a disability rating in excess of 20 percent for the service-connected residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, to include a separate evaluation for the acromioclavicular arthritis of the left shoulder.


REPRESENTATION

Appellant represented by: Robin Flores, Attorney-at-Law




WITNESS AT HEARING ON APPEAL

Veteran & his spouse


ATTORNEY FOR THE BOARD

S. M. Kreitlow


INTRODUCTION

The Veteran had active service from May 1974 to August 1978, September 1988 to August 1989, and December 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran appeared and testified at a video conference hearing held before the undersigned Veterans Law Judge in June 2012. A copy of the transcript of this hearing has been associated with the claims file. Review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010).

The issue of entitlement to an increased disability rating for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The Veteran filed an original claim for service connection for residuals of a fracture of the left clavicle on April 7, 1987.

2. In a November 1987 rating decision, the RO denied service connection for residuals of a fracture of the left clavicle on the basis that repeated attempts to obtain service records were unsuccessful and that Veteran failed to respond to requests for assistance. No correspondence was received from him within the appeal period.

3. In June 2005, the Veteran submitted copies of official service records dated in May 1985 demonstrating that he fractured his left clavicle on April 19, 1985, in the line of duty during a period of annual training (i.e., while on active duty for training).

4. By rating decision issued in November 2005, service connection was granted for residuals of a fracture of the left clavicle, effective June 28, 2005, and evaluated as 20 percent disabling.

5. By rating decision issued in March 2009, service connection was granted effective June 28, 2005, for acromioclavicular arthritis of the left shoulder, as a residual of the service-connected residuals of a fracture of the left clavicle and included as part of that service-connected disability. The 20 percent disability rating was continued.

6. CUE was committed in the assignment of June 28, 2005, for the grant of service connection for residuals of a fracture left clavicle with acromioclavicular arthritis of the left shoulder, in that the RO failed to apply 38 C.F.R. § 3.156©.


CONCLUSION OF LAW

The criteria for an effective date of April 7, 1987, for the grant of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, and 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board awards an earlier effective for the grant of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder to April 7, 1987, the date of the Veteran's original claim for service connection was received, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary.

In the present case, the Veteran seeks an earlier effective date for the award of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder. He alleges that the RO committed CUE in the assignment of June 28, 2005, as the effective date assigned because the same evidence (i.e., service records) used to grant service connection in the rating decision issued in November 2005 was before the RO at the time it initially denied his claim for service connection in November 1987. The Veteran has also disagreed with the assignment of June 28, 2005, as the effective date assigned in the February 2009 rating decision for the grant of service connection for acromioclavicular arthritis of the left shoulder as a residual of the service-connected fracture of the left clavicle for the same reason.

The Veteran's original claim for service connection for "fractured left clavicle (bone displacement) with possible arthritis" was received on April 7, 1987. A November 1987 rating decision denied service connection for a fractured left clavicle on the basis that repeated attempts to obtain records from the Veteran's reserve unit were unsuccessful and that the Veteran failed to respond to requests for assistance to obtain them. No correspondence was received from the Veteran within the appeal period. This decision is, therefore, final. 38 U.S.C.A. § 7105(b).

In August 2000, the Veteran filed again for service connection for residuals of a fracture of his left clavicle. With his claim, he submitted copies of some of his service records. Although showing he was on annual training from April 14th to the 27th of 1985 and that he was injured while on said annual training, these records failed to demonstrate what type of injury he sustained. By rating decision issued in May 2001, the RO denied reopening the Veteran's claim for service connection for residuals of a fracture of the left clavicle on the basis that the evidence submitted was not new and material because it failed to demonstrate that a fracture of the left clavicle was incurred in or aggravated in service. No correspondence was received from the Veteran within the appeal period. This decision is, therefore, final. 38 U.S.C.A. § 7105(b).

In June 2005, the Veteran again submitted a claim to reopen for service connection for fracture of the left clavicle. With this application, the Veteran submitted copies of additional service records to include a "Letter of Instruction" dated May 9, 1985, that demonstrates that he was treated as an outpatient on April 19, 1985, at Noble Army Hospital at Fort McClellan, Alabama, for a fractured left clavicle. It is noted this injury was sustained in the line of duty and that the injury occurred on April 19, 1985, at approximately 1000 hours at Fort McClellan while the service member was on annual training. Based on this evidence of an in-service injury and the results of an October 2005 VA examination, the RO granted service connection for residuals of a fracture of the left clavicle, in a rating decision issued in November 2005.

The Board further notes that, in August 2000, the Veteran filed a claim for service connection for arthritis of the bilateral shoulders, which was denied in the May 2001 rating decision. No correspondence was received from the Veteran within the appeal period. This decision is, therefore, final. 38 U.S.C.A. § 7105(b). The Veteran again sought service connection for arthritis of the bilateral shoulders in April 2006. In a November 2006 rating decision, the RO denied reopening this claim finding that the evidence submitted was not new and material. Again the Veteran did not appeal that rating decision, and it became final. In February 2007, the Veteran filed a claim for service connection for arthritis solely in his left shoulder as secondary to his service-connected residuals of the fracture of the left clavicle. Although this claim was initially denied in an August 2007 rating decision, the Veteran appealed and, in a rating decision issued in March 2009, the RO granted service connection for acromioclavicular arthritis of the left shoulder and included it with the service-connected disability of residuals of a fracture of the left clavicle. The effective date assigned for this grant of service connection was June 8, 2005, the same date as the original grant of service connection for residuals of a fracture of the left clavicle. Consequently, the Veteran's currently service-connected disability is characterized as residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, with an effective date of service connection of June 28, 2005.

Generally, the assignment of effective dates of awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. With regard to claims to reopen, however, the effective date for an award of service connection based on a claim reopened after final disallowance will be the date of receipt of the application to reopen, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400®; see also 38 U.S.C.A. § 5110(a).

In the present case, in the rating decision issued in November 2005, the RO granted June 28 2005, as the effective date for the grant of service connection for residuals of a fracture of the left clavicle, because this was the date it received the Veteran's claim to reopen the previously denied claim for service connection. The Board notes that the Veteran did not disagree with the assignment of June 28, 2005, as the effective date for the grant of service connection for residuals of a fracture of the left clavicle, within one year of notice of that rating decision. Instead he filed a claim in May 2007 seeking an earlier effective on the basis of CUE, which the Board finds is an appropriate way for the Veteran to seek an earlier effective date based upon a standalone claim such as this one. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

With regard to CUE claims, VA regulation § 3.105(a) provides:

Where evidence establishes [CUE], the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision.

In the Simmons decision, the United States Court of Appeals for Veterans Claims (Court) set forth the laws relating to CUE claims as follows:

A CUE claim is a collateral attack on a final RO decision. See Crippen v. Brown, 9 Vet. App. 412, 418 (1996); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993). In Russell v. Principi, the Court . . . defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied....[CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome...[, an error that is] undebatable,...[such that] reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.

Russell, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra), cert. denied, 528 U.S. 967, 120 S.Ct. 405, 145 L.Ed.2d 315 (1999).

A determination that there was CUE must be based on the record and the law that existed at the time of the prior decision. Russell, 3 Vet. App. at 314...[F]or there to be a valid claim of CUE, the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Id. at 313[&]...Damrel v. Brown, 6 Vet. App. 242[, 246] (1994) [(appellant's argument that the RO misevaluated and misinterpreted the evidence available to it at the time is not the type of administrative error reversible under 38 C.F.R. § 3.105(a))].

Simmons, 17 Vet. App. at 110-11.

"A party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error. This burden is not satisfied by the mere assertion that the decision contained CUE; instead the party must describe the alleged error 'with some degree of specificity' and must provide persuasive reasons 'as to why the result would have been manifestly different but for the alleged error.'" Andre v. Principi, 301 F.3d 1354, 1361 (2002); see also Crippen, 9 Vet. App. at 420; Fugo, 6 Vet. App. at 44 ("to raise CUE there must be some degree of specificity as to what the alleged error is and ... persuasive reasons must be given as to why the result would have been manifestly different"). CUE assertions that fail to satisfy these pleading requirements must be dismissed without prejudice to refiling rather than be denied by the Board. Simmons, 17 Vet. App. at 114 (2003) citing DAV v. Gober, 234 F.3d 682, 699 (2000).

"Each wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior RO decision, each must be presented to and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter." Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006); Andre, 301 F.3d at 1361 ("Because a CUE claim involves an allegation of an error with some degree of specificity, a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim.").

In considering the Veteran's claim for an earlier effective date, the Board agrees that CUE was committed in the assignment of June 28, 2005, as the effective date for the grant of service connection for the residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder-not on the basis that the Veteran has argued but on the basis that the RO failed to apply 38 C.F.R. § 3.156© in assigning the effective date for the grant of service connection.
In the present case, the RO granted service connection based on the Veteran's claim to reopen received June 28, 2005. However, in this case, in conjunction with the Veteran's application to reopen his claim for service connection, he submitted copies of service records dated in May 1985 that were not previously of record. The RO relied on these newly submitted service records to grant service connection for residuals of a fracture of the left clavicle.


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 38 C.F.R. § 3.156 (which requires the submission of new and material evidence to reopen a previously final denial of a claim for service connection). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156©(1). Records that are not included are 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. 38 C.F.R. § 3.156©(2).

The service records submitted in June 2005 were newly received and relevant to the previously denied claim in that they verified the Veteran's reported fracture of his left clavicle during a period of annual training in April 1985 (an element of significance in determining entitlement to service connection for residuals of that injury). They were clearly in existence at the time of the previous denials of the Veteran's claim for service connection because they are dated in May 1985 (despite the Veteran's contentions otherwise, they were not of record at the time of the previous final denials of the claim). Finally, it appears that, in conjunction with his original claim for service connection, that the Veteran did not fail to provide sufficient information for VA to identify and obtain these service records. He identified his duty assignment and location at the time of injury, as well as the military hospital where he was treated (he even gave the name of the specific military physician who treated him). Consequently, the Board finds that the Veteran was entitled to consideration of his claim on the merits, as opposed to on a new and material evidence basis. 38 C.F.R. § 3.156©.

An award made based all or in part on the records identified by 38 C.F.R. § 3.156©(1) 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 38 C.F.R. § 3.156 applicable to the previously decided claim. 38 C.F.R. § 3.156©(3). Here, the Veteran filed his original claim for service connection for a "fractured left clavicle (bone displacement) with possible arthritis" on April 7, 1987. Clearly entitlement to service connection arose prior to the date of that claim as the Veteran was injured in April 1985. As April 7, 1987, the date of the Veteran's original claim for service connection is the later date, the Board finds, pursuant to 38 C.F.R. § 3.156©(3), that that day is the appropriate effective date to be assigned.

For the foregoing reasons, the Board finds that the RO committed CUE in failing to apply the provisions of 38 C.F.R. § 3.156© to the award of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, and assigning an effective date accordingly. The Board finds that the Veteran's claim for an earlier effective date is granted and that an effective date of April 7, 1987, should be assigned for the grant of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder.


As for the Veteran's allegations of CUE in the November 1987 rating decision that originally denied service connection for the left clavicle fracture residuals, the Board finds that, given the grant above, it need not address those allegations as they are now moot.

ORDER

Entitlement to an effective date of April 7, 1987, for the grant of service connection for residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, is granted.

REMAND

The Board finds that remand of the Veteran's claim for an increased disability rating for his service-connected residuals of a fracture of the left clavicle with acromioclavicular arthritis of the left shoulder, which is currently evaluated as 20 percent disabling, is warranted for further development. The Board notes that the Veteran is also seeking separate ratings for his acromioclavicular joint arthritis from the residuals of fracture of his left clavicle.

The Board acknowledges that, at the hearing held in June 2012, the Veteran indicated, via his attorney, that he would be satisfied with the 20 percent disability rating if the Board were to grant his claim for an earlier effective date and, therefore, would essentially withdraw his claim for an increased disability rating. The Board finds that it cannot accept this prospective withdrawal for two reasons. First, it appears that the Veteran assumes that the 20 percent disability rating for his service-connected residuals of a fracture of his left clavicle with acromioclavicular arthritis of his left shoulder, is going to be assigned back to the new effective date of April 7, 1987. That may not, however, be true. At this point, the Board intimates no opinion as to what disability rating should be assigned to the Veteran's service-connected disability between April 7, 1987 (the new effective date for the grant of service connection), and June 28, 2005 (the effective date of the current 20 percent disability rating). That determination is left to the RO to make based upon the evidence of record.

Second, at the hearing, the Veteran, via his attorney, also indicated that his service-connected disability has worsened since it was last evaluated. The Board notes the last VA examination was conducted in November 2008, four years ago.

Consequently, the Board finds that the most appropriate action at this time as to the claim for an increased disability rating is to remand it for additional development to include obtaining any current treatment records, both VA and non-VA. The Board notes that VA treatment records from February 2007 through February 2009 are associated with the claims file. As for private treatment records, the claims file contains treatment records from May 2003 to March 2005 and from January to February of 2007. It also contains the report of a magnetic resonance imaging (MRI) study conducted in October 2006. Efforts should be undertaken to obtain more up to date treatment records. Furthermore, the Board finds that the Veteran should also be provided with a contemporaneous VA examination to determine the current severity of his service-connected residuals of a fracture of his left clavicle with acromioclavicular arthritis of his left shoulder.

The Board notes that this does not mean that the Veteran cannot in the future decide to withdraw this claim if he is satisfied with VA's actions. It merely means that the Board, at this time, does not find it appropriate to dismiss this claim as withdrawn based upon the testimony at the June 2012 hearing.

Accordingly, the case is REMANDED for the following action:

1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter pertaining to the increased rating claim remaining on appeal.

2. Contact the Veteran and ask him to identify both VA and private medical care providers who have treated him for his service-connected residuals of a left clavicle fracture with acromioclavicular joint arthritis. For all private medical care providers, the Veteran should be asked to provide a completed release form for each identified private physician so that VA may obtain the identified treatment records. The Veteran should be advised that, in lieu of submitting completed release forms, he can submit these private medical treatment records to VA himself. If the Veteran provides completed release forms, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records.

3. For all VA treatment identified by the Veteran, associate with his claims file all VA treatment records relating to treatment for his service-connected residuals of a left clavicle fracture with acromioclavicular joint arthritis from the appropriate VA Medical Center(s).

4. After all additional available evidence has been obtained and associated with the Veteran's claims file, schedule the Veteran for a VA joints examination to determine the current severity of his service-connected residuals of a fracture of the left clavicle with acromioclavicular arthritis. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner should indicate in the report that the claims file was reviewed.

All necessary tests and studies should be conducted in order to ascertain the severity of the Veteran's service-connected residuals of a fracture of the left clavicle with acromioclavicular arthritis. The examiner should elicit information as to the frequency, duration, and severity of any associated symptomatology, and loss of function in daily activities, including work and physical activity. The examiner should determine the limitation of motion, if any, of the Veteran's left shoulder, and discuss whether there is pain on movement, swelling, tenderness, deformity or atrophy of disuse. Repetitive testing should be conducted, and the examiner should indicate whether it results in additional limitation of functioning due to increased pain, increased limitation of motion or excessive motion, weakness, fatigue or incoordination. The examiner should also indicate whether there is impairment of the left clavicle consistent with malunion, nonunion (with or without loose movement), and dislocation. Complete rationale for all conclusions and opinions should be provided.

5. Then, the increased rating claim remaining on appeal (as is listed on the preceding title page) should be readjudicated to include consideration of whether separate disability ratings are warranted for separate manifestations which would not constitute impermissible pyramiding under 38 C.F.R. § 4.14. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his attorney. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order.

No action is required of the Veteran until he is notified by the AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. He has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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This is the first time I have seen them tell a veteran he cannot wothdraw a claim?

basser,

The way I understand it is,

he was only going to withdraw his claim for increase, IF THE BVA would provide an earlier effective date.

"the Veteran indicated, via his attorney, that he would be satisfied with the 20 percent disability rating if the Board were to grant his claim for an earlier effective date and, therefore, would essentially withdraw his claim for an increased disability rating."

And they granted under CUE due to 3.156c.

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This judge was very generous, IMHO because (from the decision):

A November 1987 rating decision denied service connection for a fractured left clavicle on the basis that repeated attempts to obtain records from the Veteran's reserve unit were unsuccessful and that the Veteran failed to respond to requests for assistance to obtain them. No correspondence was received from the Veteran within the appeal period. This decision is, therefore, final.

end of decision quote

3.156 C (2) specifically exempts an eed when the Veteran fails to assist finding the records:

(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.

As I said, the judge was generous because I can see it going the other way: I think it is rare when the VA judge is this generous, or overlooked this completely. JMHO

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This judge was very generous, IMHO because (from the decision):

A November 1987 rating decision denied service connection for a fractured left clavicle on the basis that repeated attempts to obtain records from the Veteran's reserve unit were unsuccessful and that the Veteran failed to respond to requests for assistance to obtain them. No correspondence was received from the Veteran within the appeal period. This decision is, therefore, final.

end of decision quote

3.156 C (2) specifically exempts an eed when the Veteran fails to assist finding the records:

(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.

As I said, the judge was generous because I can see it going the other way: I think it is rare when the VA judge is this generous, or overlooked this completely. JMHO

bronco,

He could have finally gotten hold of the records thru piece-meal from VA.

We do know that many times records are requested - yet stored in different places

or not all of them are provided, etc . . .

In most cases the claimant is dependent on the VA or JSRRC to provide the records -

when they don't and then later they locate them - this is one lucky vet.

"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 38 C.F.R. § 3.156 (which requires the submission of new and material evidence to reopen a previously final denial of a claim for service connection).

Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156©(1). Records that are not included are 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. 38 C.F.R. § 3.156©(2)."

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