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

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63SIERRA

Question

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))

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here is the very first denial in 95

service med recs from the period of 3/89 to 7/95 (this is wrong as I entered service mar 90 to aug 95. ) show the vet was involved in a car accident in 12/93 with complain of pain and decreased range of motion of the lumbar spine. there was tenderness to palpitation and muscle spasm present. xrays showed a pars defect at l4 vertebre with spondylolysis and without spondylolysisthesis. (this means that a vertebre was broken and something was not in its proper normal position). 'there was a suggestion of a fracture at l3. (this is a lie there was an undeniable fracture at l3,)

A bone scan was done in 12/93 showed no spondylolysis or fracture and was interpreted as being within normal limits. (this is a bald face lie , I have a MD record saying there definitely was a fracture, they just arent sure when it occured, they had access to this document)

the veteran was diagnosed with acute lumbar muscle strain, due to the mva. in 12/94 he complained of low back pain, following heavy physical activities and was diagnosed with muscle and spasms due to overuse. in 5/95 there was a full range of motion of the lumbar spine with all tests being normal , there was no tenderness to plapatation or muscle spasms present NO SEPERATION EXAM IS OF RECORD. (this too is a lie, because I have it and on my sf 93, I indicated I was still having back pain and the doctor acknowledged it

So basically being they said there was no fracture present, and I have medical evidence saying there was a fracture present, that they had free and easy access to, would that be a CUE action?

now that things are becoming very clear what they did to me, im very upset abt this.

Edited by 63SIERRA
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"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."

If the C & P was for the back condition, did the C & P doctor make a service nexus statement on the C & P worksheet?

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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"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."

If the C & P was for the back condition, did the C & P doctor make a service nexus statement on the C & P worksheet?

Berta I havent got the CP results yet, the cp was a couple days ago it was at a VAMC and I heard there was a 3 day hold, but im going to go in a couple days and try to get a copy before it goes to the RO.

the CP was for TDIU for my hep and kidney cancer. and several other conditions the back claim just jumped out at her. She zeroed in on it right away.

Edited by 63SIERRA
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