Newly Discovered Service Records That Was Avabile

[mos1833]

the va could not locate my personel records after two requests

mainly because they requested the wrong records for the claimed disability

and i told them sooooooo

i told them that i had requested my smr's and i received them in 2000

but that i was homeless and they got lost.

so i gave them the address i used to get them.

to make a long story short , my sister was moving last year and found the folder

which i had received in 2000. it has stuff that would prove what i have been saying

since day one. that i never recovered from my back injury.

it shows where i was removed from duty with the dates more than three times,

they denied my claim because of they did not believe my testimony.

now can i use this as a cue or try to get them to reconsider using newly discovered

service records

thanks

[TiredCoastie]

I think you should submit copies of your SMRs as evidence with a new claim but make sure you write a letter explaining that you are reopening the past denial based on the finding of your SMRs per 38 CFR 3.156©.

http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=6d8f3661149f8bb72c1e7c03735fa252&ty=HTML&h=L&r=SECTION&n=se38.1.3_1156

Do you have a way to show that you've been receiving treatment or care for your disabilities? Can you obtain those records? Can you get a doctor to fill out a DBQ form? Would the doctor make a written statement tying your current disabilities to those you had on active duty? Just trying to help you make your case as air-tight as possible...

The whole "duty to assist" thing doesn't seem to hold up, so it's no wonder your records were never obtained or considered. You've got to be your own advocate, do as much work for them as possible, etc just to be successful. What that does is place vets like you, who were homeless for a while, at a significant disadvantage. Those who need help the most can't get it because they don't have the resources to successfully navigate the system.

[Berta]

Great advise . 38 CFR 3.156 can be as powerful as a CUE claim.

This is good news MOS 1833, because I think this stuff happens to more vets than we know.

[carlie]

Great advise . 38 CFR 3.156 can be as powerful as a CUE claim.

This is good news MOS 1833, because I think this stuff happens to more vets than we know.

Berta,

I would think that newly discovered records would not fall under CUE,

because having the newly discovered records only meets the first prong of the CUE criteria.

but if those newly discovered records result in SC, then 3.156c would support the earlier effective date of the claim.

I feel that this claimant would be best to use the 3.156 over a submission of CUE

Does that sound right ?

I'm posting this because the OP has it in the CUE forum.

[mos1833]

thanks tired,and berta

berta do you recall a post i made a couple of years ago about how

the va requested records that had nothing to do with my back claim

they requested records for a ptsd claim that i droped, and yes i told them that

so i got the claim remanded to get my personal records, but guess what they just

re-summeted the same request as before, and then denied my claim cause of no evidence

that may show i had a chronic injury.

any way i started an inquirey last year for them to explaine why they had not decided a cue claim

i made back in 2000,now when i check on whats going on using the 1-800 no.

they say because of the inquirey they had to re-open my claim ( does that sound right ) ?? thanks

[Berta]

Yes Carlie---you are right !

I think Mos1833 raised the CUE issue here some time ago

"they say because of the inquirey they had to re-open my claim ( does that sound right ) ?? thanks"

I dont know what they mean but I also think, if VA wants to re-open something, that could be a good thing.

They dont send VCAA letters out on CUEs, if this is the older CUE you filed that they re=opened , but maybe something else turned up in what you said in the Inquery.

I forget, do you have a vet rep?

[mos1833]

berta no rep i'am on my on

i was wondering about what the 1-800 guy told me ,

that they re-opened my claim just because of the inquirey.

if i summit the records ,then they will only reconsider is that right ???

because they made a lot of other mistakes.

thanks

[Navy04]

I agree with Carlie on this one my friend. A lot of Vets are quick to state that they have a CUE, but a lot of times it falls on the Veteran for not following up, regardless of what the Veteran is going thru in their personal life. I recently could have submitted a Valid Cue, but it would only grant me $2500 worth of back pay, so it was not worth me rocking the boat, and giving the VA a reason to deny me for the recently awarded 100%. Sorry to hear of your troubles though.

[mos1833]

carlie said

I feel that this claimant would be best to use the 3.156 over a submission of CUE

i think you are right .

if my claim has been re-opened, how do i use 3.156, with the new evidence.

do i just summit them and say please reconsider my claim from day one,

they have denied my claim because they questioned my lay testimony, the new

records will show that it is creditable,

thanks all

[carlie]

carlie said

I feel that this claimant would be best to use the 3.156 over a submission of CUE

i think you are right .

if my claim has been re-opened, how do i use 3.156, with the new evidence.

do i just summit them and say please reconsider my claim from day one,

they have denied my claim because they questioned my lay testimony, the new

records will show that it is creditable,

thanks all

You can submit this newly found evidence attached to a 21-4142

and state something like - -

This evidence was NOT OF RECORD when the prior decision was made.

You request that this newly found evidence be included in the record now.

The prior decision dated XX/XX/XXXX, denied the claim issue due to XYZ.

You feel this newly discovered evidence is sufficient to warrant SC due to XYZ,

which clearly supports a full grant, of the benefits requested.

Upon the decision to grant this claim issue you request the earlier effective date of

the prior claim submission (XX/XX/XXXX) due to 38 CFR 3.156c.

Keep it as clear and simple as possible.

BTW -

What exactly did the denial state and

what exactly does the newly discovered evidence state - that you feel will

sway the new decision, in your favor ?

[mos1833]

carlie if the link below opens it will show what the va says is needed.

the records i just found will support my lay evidence.

bad,hinges on.txt

[carlie]

carlie if the link below opens it will show what the va says is needed.

the records i just found will support my lay evidence.

bad,hinges on.txt

Yes I got it to open and am doing a copy & paste of it here - but -

I am redacting your name that is in it.

"This appeal is timely and the Court has jurisdiction.

See 38 U.S.C. ßß 7252(a) and 7266(a).

For the reasons that follow, the Court will affirm the July 29, 2011, decision.

This claim hinges on whether Mr. XXXX can establish that the Board erred when it found

that his lay statements about continuous symptoms of back pain since military service were not

credible. See 38 C.F.R. ß 3.303(b) (2012) ("

In the prior decision - what is the Reason they gave to support their decision that your

lay statements were not credible

and

what does the newly discovered evidence state ?

[mos1833]

carlie

they didnt believe me when i said i was on lite duty a lot after my injury.

they said there was no medical records that showed it was a chronic condition.

so when i said that they should get all my records, they said they tryed and that

was the end of that,so i told them they were searching for the wrong records.

( they requested stressor documents ) any way , like i stated above it seems they

denied me just because of my lay evidence.

( IT SAY THIS CLAIM HINGES ON WHETHER I CAN PROVE MY TESTIMONY CREDIBLE )

so the records below show my unit history or my history at least.

while its not medical evidence,it does support my testimony which i assume is the issue here.

the dates are mixed up but the point i was trying to make in my testimony is clear here that i lost

my duty status , i cant call it medical but it does show a break of duty ,

if the files below do open ,ill try to repost them,tell me what you think.

thanks

[carlie]

I looked it over but have absolutely no understanding of

what you feel is in here, that supports the claim ?

[mos1833]

well carlie

the va said my claim was based on whether i could prove that they were wrong when they denied

my claim, based on my creditable.

they said i recovered from my injury and it was an acute,but i said it was chronic,and that i was put on lite duty

til i was seperated. the duty records above shows that i was on and off duty,

which should prove what i said,and add to my creditable.

its a pretty big deal when a duty matter comes up at morning reports,they use to call us the sick bay playtoon.

and shit birds. thanks

[carlie]

well carlie

the va said my claim was based on whether i could prove that they were wrong when they denied

my claim, based on my creditable.

they said i recovered from my injury and it was an acute,but i said it was chronic,and that i was put on lite duty

til i was seperated. the duty records above shows that i was on and off duty,

which should prove what i said,and add to my creditable.

its a pretty big deal when a duty matter comes up at morning reports,they use to call us the sick bay playtoon.

and shit birds. thanks

Have you combed your records for any time off or light duty,supported by a medical profile ?

[mos1833]

carlie

remember i said i suffered a chronic condition. and was put on a no duty profile.

the v.a.i was not a credible witness. so they denied my claim for that among other things

but i am trying to prove they were wrong about my creditibilty.

i hope the files below and the one on top opens, thanks

Edited September 16, 2014 by mos1833 (see edit history)