Lost Military Records Found: Expert Help Needed

[Fat]

I have a neighbor who submitted a claim for a injury to his right leg in basic training. The injury resulted in hospitalization, surgery, and a honorable discharge after one year into his military career. He submitted a claim for residuals related to pins in his hip, thigh, and knee. The claim was denied due to no military records being filed regarding the injury or surgery. About one month ago mysteriously his records arrived at his home. I advised him to file a NOD immediately, but now I'm wondering if he should submit a CUE in the matter. What do you think? I think he has a decent claim dealing with ROM issues, one leg shortened, pain, restless leg syndrome, and depression from worrying if the condition will ever improve.

[carlie]

I have a neighbor who submitted a claim for a injury to his right leg in basic training. The injury resulted in hospitalization, surgery, and a honorable discharge after one year into his military career. He submitted a claim for residuals related to pins in his hip, thigh, and knee. The claim was denied due to no military records being filed regarding the injury or surgery. About one month ago mysteriously his records arrived at his home. I advised him to file a NOD immediately, but now I'm wondering if he should submit a CUE in the matter. What do you think? I think he has a decent claim dealing with ROM issues, one leg shortened, pain, restless leg syndrome, and depression from worrying if the condition will ever improve.

First - this would not be a CUE.

Second, if the one year timeframe to submit a NOD is still open,

then he can submit copies of this evidence and refer to 38 CFR 3.156c,

for effective date, if SC is granted.

jmho

http://www.ecfr.gov/cgi-bin/text-idx?SID=9a06cbec590377a56e8c04d2e81e248d&node=se38.1.3_1156&rgn=div8

[Fat]

I should have added he has eight months until his one year appeals period ends.

Thanks Carlie...............

All replies are appreciated.

[john999]

This would be a NOD and either DRO or Traditional Appeal. He can win this.

[Berta]

Since he has not filed a NOD yet and still has time, I would instead ask them to reconsider under the regulation Carlie stated.

It isnt a CUE because CUE is like the Watergate question ..what did they know and when did they know it...

If VA did not know of these records ,they could not commit a CUE about not knowing about them.

We did a radio show here in 2012 on 38 CFR 3.156 ©

In that link I gave excerpt from 2 BVA cases, one whereby the vet got 15 years retro when the inservice records showed up.

If I were you I would immediately write to them and put Attention to: and then the initials in the numeric initial thing on the right hand top side of the decision.

These are the initials of the last person who handled your claim at the RO.

Put in Caps
RECONSIDERATION REQUEST BASED ON 38CFR 3.156©

Tell them why you seek reconsideration of their (date) decision ,make sure your C file number is on the request and tell them you have enclosed a complete copy of the service records.
and send them copy of any cover letter you got with them (to prove this is where they came from)

Send them copies only and get a USPS proof of mailing.

But Mark your Calender so that the NOD deadline does NOT slip away....

A reconsideration request does NOT stop the NOD clock.

Do you have a vet rep?

If so they probably have a rep in or near the same RO building you deal with and maybe they could get a faster result if they are willing to approach the rater themselves with this information.

Unfortunately many reps , even those with some access to VARO raters, do not always have enough b-lls to take action in situations like this, actions that could reduce the backlog......

But maybe you can get a rep who would be more than willing to approach the rater directly.,with the Recon Request and the SMRS copies.

Good luck!

OH I re read this, THANKS for helping him........this was not a question for yourself.

You could print out our responses and give that to him.

I wonder if the VA actually tried to get these records themselves.

When I used NARA website to obtain my husbands SMRs I got his Navy records but a letter saying his USMC records had been sent to the Buffalo VARO.

That is where I hoped they would be.

Yet many vets over the years have had VA say the inservice records could not be obtained yet C file info revealed they (VA) never even tried to get them.

[Fat]

I will pass the information along.

[Fat]

Thanks for all the help.........................