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))

[NavyWife]

Most Everything in your cfile should have a date stamp on the front or the back of the document. That is the date VA "officially" received it.

Also, they pretty much keep everything in chronological order. With the most recent stuff on top.

Hopefully when you got your C file you made a copy before moving the papers out of order.

Edited April 27, 2014 by NavyWife

[john999]

You find out what the VA had as evidence because they should have listed the evidence in the rating decision. If there is evidence in your rating decision file that is not listed you should assume they did not have it before them when they made the decision. That should be open and shut, but it isn't. If the claim became final you have to file a CUE to try and get an EED if you get SC'ed based on the same evidence. I would get a lawyer to look over the old denial in light of your new SC if you get it. If the evidence is the same and the rules for rating your disability were the same in 1995 as now you might have something. It is a long hard road with these things. First thing the VA will say is you want to reweigh evidence in light of new evidence. That kills a CUE.

Even when you don't want to reweight evidence they will say you do. That is standard argument for many CUE's seeking EED's.

[63SIERRA]

well the only thing I recieved was the VCAA notice because I didnt appeal or NOD the claim in 95. what they wrote in the VCAA notice is very sparce. and in no way covers all or even most of the evidence. in my initial denial it said NO SEPERATION EXAMINATION IS OF RECORD. which was false because I found my SF95, AND MY SF93 in my own personal in service med rec copies. they left out many things, including where the doctor said my back had been fractured, but wasnt sure when. and that I had radicolapathy, after the car accident I was in in 93 in service.

Ok again in apr 1996 I filed again, and in the VCAA response it says the veteran has submitted additional service medical records (this proves they didnt consider everything in 95). evidence of record shows he was placed on physical profile twice in dec 93. he wsas seen on 3 other occasions on 01-09-95, 01-17-95and 04-12-95. on report of medical history given on 06-14-95 veteran indicted he had recurring back pain, stiffiness and numbness in his legs when sitting for long periods. the condition identified as pars defect l4 with spondydlolysis is considered a congenital defect or developmentsal defect which is unrelated to millitary service and not subject to service connection. there were no med recs submitted to estsblish veteran had anything other than a congenital or developmentsal abnormality which means the veteran was either born with this condition or it developed naturally . therefore entitlement to servicer connection for a back condition remains denied.

[63SIERRA]

OK lets give the VA the benefit of the doubt and say it may have been a congenital or developmental defect, BUT what abt the fact that it aggravated my condition, just this fact to me would indicate that they did not follow the law, because they never considered the fact that it aggravated my condition.I didnt get into the army with pain and numbness in my legs, pain and stiffness in my back, and going to physical therapy.

SO NOW, we have established that they DID NOT HAVE ALL OF THE EVIDENCE IN 95, because they reopend the case in 96 due to new evidence in my SERVICE med recs.

Edited April 27, 2014 by 63SIERRA

[63SIERRA]

OK the saga continues, we are now stardate november 2012. I file for the back condition again. this time I submitted new evidence because when they removed my kidney for service connected cancer they had to twist and turn my torso in many directions and it further increased my back pain, my wife told me the first thing I told her when they wheeled me into recovery room was my back was killing me. Ok keep in mind I was still fresh from the anestesia, and they were pumpin me with morphine. Once agasin, DENIED for back condition. reason was that they didnt believe I submitted new and material evidence. So now it is on appeals .

I think that what I must try and show is one, they didnt have the proper evidence in 95 when they initially decided my claim, and 2, if they had that evidence it would have resulted in service connection because it would have supported my claim that it aggravated an injury or conditions, . Or I could stick to the guns of, saying that the doctors were not sure when the fracture in my back occured, because they put a questiuon mark behind thier diagnosis of OLD SEAT BELT INJURY???

Edited April 27, 2014 by 63SIERRA

[63SIERRA]

The fact that they screwed up in 95 and OMITTED some of my medical records but just said they didnt have them, will look good for me in front of a judge I would think. If I had them ,why in the hell didnt they have them., THEY HAD THEM, they tossed them to make my conditions look sparce/

Edited April 27, 2014 by 63SIERRA