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Evidence Discovered By Va Within One Year After Rating Deicion


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Question

Can anyone tell me if VA made an error by not considering information discovered by them during within one year of the rating decision (before it became final).

Issue: The VA wrote me an inquiry in 2012 in response to an inry that I sent them regarding my service treatment records: The response that I received from VA stating " there is documentation in your claims files stating that the Roanoak Regional Office requested your Service Treatment Records on May 29, 2002. The Records Mangement Center (RMC) responded on June 11, 2002 stating that the requested records were transferred to your station on March 3, 1998".

My claim was within one year after the rating decision and had not become final. VA never mentioned this discovery in there rating decision or provided me a statement of the case explaining what happen to my service treatment records that were in there possession. My claim is now on appeal with the BVA because the VA states that they must deny because me service treatment records are not available.

Question: Since my rating decision was not final (within the one year mark) should the VA have sent me a Statement of The Case to explain this finding/discovery (based on the response that they sent me regarding my SMRs)?

Thank you

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ADD: This looks like 1 for Asknod. The fact that there is no mention of what the missing records contain DX wise, in regards to your Denied claim might be problematic. The VA 's duty to assist was attempted but failed to get the records and you didn't have copies to provide, right. As for the S-SOC. My understanding is that as long as your claim is open, VARO level or BVA level, any "New & Material Evidence" received prior to the end of the VA Notice of 90 day N&M Evidence cutoff, a VARO Review of your Denial is mandated by VA Regulation. If what you referred to was not considered "N&M Evidence" by your VARO, no Denial review or subsequent S-SOC would have been completed.

Just for information, did you or are you receiving Claims assistance from a VSO? You might want to consider a couple free Legal consults from VA Accredited Appeals attorneys.

What did your Denial give as reasons for the Denial and what evidence would be necessary to prevail?

Semper Fi

Gastone

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"My claim is now on appeal with the BVA because the VA states that they must deny because me service treatment records are not available."

"Question: Since my rating decision was not final (within the one year mark) should the VA have sent me a Statement of The Case to explain this finding/discovery (based on the response that they sent me regarding my SMRs)?"

Possibly , but then again, they had already made the decision.

"The Records Mangement Center (RMC) responded on June 11, 2002 stating that the requested records were transferred to your station on March 3, 1998".

Great ,but where are they now? In your C file that will be transferred to the BVA ?, or have they been retired to St Louis?

This is what I feel you need to do.

You need to advise the BVA ( do you have a docket number there yet) as to this information.

But also, you need to attempt to find those records.

I wonder if they have been sent back to NARA.(they can be requested right at the NARA web site)

But I dont get this:

"The VA wrote me an inquiry in 2012 in response to an inry that I sent them regarding my service treatment records: The response that I received from VA stating

" there is documentation in your claims files stating that the Roanoak Regional Office requested your Service Treatment Records on May 29, 2002. The Records Mangement Center (RMC) responded on June 11, 2002 stating that the requested records were transferred to your station on March 3, 1998". "

I assume that ,in 2012, your claim might still have been at the RO?

If so ,what did you do with this information from IRIS prior to the transfer to the BVA?

What did you do with this information when you got a VA denial that did not refer to the SMRS?

That could have triggered a claim under 38 CFR 3.156., on your part if the RO denied without the SMRs referenced or listed as evidence,if they had received them .

It might still be the basis of a 38 CFR 3.156 issue........hard to say with limited info here....

and the worse case scenario is that the BVA gets the SMRs but they do not support the claim at all....

You could also send another IRIS as a Complaint...they have a pop down Menu for that.

Basically the last IRIS response ( tell them what that response said and when you got it, with the IRIS confirmation number on it)

indicated the RO who denied the claim,had ignored your SMRs and tell them of this statement too.

"My claim is now on appeal with the BVA because the VA states that they must deny because me service treatment records are not available."

Do you have anyone on your POA?

I am thinking the SMRs might still be in your C file....

Have you requested a copy of your C file?

As I mentioned here before I had multiple issues with VA, denied at first because the VA ignored evidence in the file.

They told me one piece of Prime Facie evidence NEVER existed.

I found it right at the bottom of my C file.

if they had not ignored it, my FTCA case would have gone faster.

By Prtme Facie I mean it was a Peer Review VA doctor who had totally agreed with my FTCA charges.Of course they ignored it and told me it never existed....

They ignored ALL of my evidence for my AO DMII claim.

The BVA didn't ignore a single piece of it.

We MUST be proactive on our claims.

About a year ago the VA, after acknowledged receipt of a 1151 claim I filed, started to say I had never filed the claim.

Then I finally found out what happened...they used the 1151 claim as a NOD for a claim I have pending that has not been denied yet..How stupid is that?.

I griped a lot about that to VA and now they say they do have the 1151 claim,pending, the CUE claim,pending, the NOD on the CUE and the NOD request for extension of NOD claim.(because they made a CUE in the award)

And then they opened a new claim for me, for DIC. But I already get DIC.????

In any event I think you are very fortunate to be at the BVA.

The BVA reads evidence. My RO cannot even read a claim properly.

.

Edited by Berta
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Gastone

That is correct, the VA 's duty to assist was attempted but failed to get the records and I didn't have copies to provide. However, the VA never stated in there rating or statement of the case about contacting the RMC. They only stated that they could not get my service treatment records from the Service Department. Va neither mentioned NPRC (unless the service department is considered NPRC).

The Va denial list non incurrence in service, do to lack of medical treatment records. They asked me to send them copies if I had them and they would reconsider my claim. I did not have them so they continued to deny my claim.

And Yes, I am recieving claim assistance from a VSO. However, they have been limited assitance. It is obviously, that they did not review my claims file thoroughly prior to submitting the 646.

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Berta

"Great ,but where are they now? In your C file that will be transferred to the BVA ?, or have they been retired to St Louis?"

They are considered lost. I received the lost and attempt to continue to locate them would be futile statement from VA. No they are not in my C-file according to my VSO. St Louis sent me a letter stating that my service medical records were on loan to the VA.

"Do you have anyone on your POA?"

Yes, I have a POA. Not much help. I do most of my own research and submit it through the POA. I once asked the POA Rep if he expounds on what I am sending to VA and his response was that they would not send anything that I sent in that would hurt my claim. Basically, my POA has been a mail distributor for me.

"Have you requested a copy of your C file?"

No, I have not. My POA assured me that the SMRs were not in the C-File.

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"And Yes, I am recieving claim assistance from a VSO. However, they have been limited assitance. It is obviously, that they did not review my claims file thoroughly prior to submitting the 646."

"My POA assured me that the SMRs were not in the C-File."

Then the POA must have a copy of your C file that you could look through.

Or whoever prepared the 646.

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EXCELLENT................

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