Ok, Lets Get To The Nitty Gritty Here. Im Looking For Cue Evidence

[63SIERRA]

posted below are the regs governing establishing an earlier effective date of award of a claim, sort of a cue. Im unclear on exactly what it means. It says previously unseen service department records. so doesn this mean any active duty medical records that would have been reasonably available to the RO t the time the claim was done? in other words, if I have in my possesion a medical document that was copied out of my med recs before ETS, and the RO doesnt have it in my CFILE. ?

156 New and material evidence.

(a) General. 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)

(b) Pending claim. 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(b)(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))

© 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. (Authority: 38 U.S.C. 501(a))

[Berta]

"in other words, if I have in my possesion a medical document that was copied out of my med recs before ETS, and the RO doesnt have it in my CFILE. ?"

If the missing med rec was relevant to your claim, then that could be a potential 38 CFR 3.156 situation.

These links might help and we also did a RAdio show here in late 2012 on this regulation.






Chris Attig is a good Vet lawyer..here is his take on this reg:


https://www.attiglawfirm.com/shoot/2-times-that-veterans-should-argue-for-an-earlier-effective-date/

[Gastone]

Do you have a NOD Hearing or standard appeal regarding award date pending? I would approach this as NEW & Material Evidence. For a QUE claim, you might want a VET Lawyer consult.

A Statement in Support of Claim and the medical document should do the trick. If your still at DRO level, you might consider requesting an "informal conference."

Have you requested "FOIA" copy of your C-File. The "IF" in regards to your document, threw me off. Is the refered to Military Med Recd, the only one not in your C-File? Might be time, to make copies of everything you have in your possesion that helps your claim and forward it to the VA.

I have 2 NOD herings pending from 2010 & 2012. Just recieved my C-File Jan 2014, hand delivered FOIA request to Det RO 09/2012. File had documents from 1975 thru 12/2012, nothing for the entire 2013 period.

Before filing a "QUE" claim, you might consider a consult, with a VET Lawyer.

Good Luck

[Gastone]

Sorry, forgot to ask, did you use a VSO on your original claim and appeal? I did in 07/2008, have never heard from him nor the VVA since the original claim was filed. I now use a different Org. VSO, for consultation only, in regards to claims and appeals that I personally file. I will use the VSO DRO Hearing specialist, with either my informal conference or the actual NOD DRO Hearing.

[john999]

You can only file a CUE on a claim that is final. If you discovered missing SMR's then what Berta discussed is the way to go. You don't want to have to deal with CUE regulations if you can avoid it. The burden of proof to win a claim is much higher, and not necessary if you have found missing SMR's. I know you are wanting earlier effective date. You can get to it via CFR 3.156. If the VSO you are working with seems not to understand this reg. just do it yourself or hire a lawyer.

[63SIERRA]

OK my first VSO was good man, but not skilled in VA BS. My second VSO was a retarted, lazy, liar. I fired him and went solo. I was denied in 95 for a back condition. I know they shafted ,me and I should have been approved in 95. I recently went to a CP exam, and the examiner was appaled that Im not service connected, and said I had plenty of evidence in my in service med recs for an approval, and was dumbfounded as to why I am still not getting comp for the back condition. My claim is in early stages of appeal right now, havent recieved statement of the case yet, it is still at the RO.

Heres my angle, I believe that on appeals I will win, and what im trying to do, is get an earlier effective date back to 95.

I have a pro bueno lawyer assisting with the case but havent heard much fron him. I think he is waiting for it to go into full blown appeal status and go to the wizard stage .

Edited April 27, 2014 by 63SIERRA

[63SIERRA]

second part of my question and thanks greatly to those who have replied. is... how can I know exactly what the RO had when they did my case in 95. I have a copy of my C FILE, but dont know how to reconcile it from different time periods,. what did they have and when did they have it .