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Prospector
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Question

I just faxed the following message to my VSR.

I am curious what he will reply.

My claim for PTSD, dated June 25, 2007 was denied due to lack of proving a stressor.

I filed a form 21-4138 (your office filed it) in June 2012, and resubmitted the same medical evidence as was in the 2007 claim along with the complete military logs confirming one of the stressors, and requesting they re-open that claim due to New and Material Evidence..

Instead of reviewing the June 25, 2007 claim, the VA opened a new claim.

It is my understanding from New and Material Evidence under 38 CFR 3.156 this request for review should have been addressed.

A review of the original claim from June 25, 2007 under 38 CFR 3.156 was not mentioned in the SOC received on the case granted in 2012. They just started a new claim which found me 50% for SC PTSD.

I feel if they had reviewed the case as is required under 38 CFR 3.156, it would have produced the same results as the new case shown in 2012 as it included the same medical evidence as was shown in 2007 with the added New and Material Evidence (ships logs).

I contend based on this information, a retroactive date should have been designated to the first filing June 25, 2007.

38 CFR 3.156

(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.

I only learned recently from examination of my C-file they did not have the complete military logs of the incidents at the time of my first denial.

They had sent for them as at that time I was unaware of where to get them.

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EXCELLENT!

Short and sweet

The actual regulations are cited for 38 CFR 3.156 and you told them ,very concisely, why they owe you more cash.That is, you told the VSR...

Prospector, you sure have your ducks in a row!

Those ducks are well armed too, with evidence.

I wonder how many times vets will accept an EED that is not correct,because they finally get an award and are burned out by that battle and maybe don't have any vet rep or anyone else to tell them the VA still owes them $$$$.

Or have a vet rep who does not even understand 3.156.

Let's hope this goes fast.....

In situations like this I advise here from time to time to put Attention to and then use the initials that appear in the upper right hand side of the decision with the numeric code.

Those initials are of the last person who handled the claim.

Hopefully that would get the claim back to them sooner then later.

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Thanks as always Berta.

Every claim and NOD to date, I researched and filled out on my own. I only used the VSR to physically take the information to the VA. This VSR had actually looked at my file on the 9th and discovered the fact the VA did not have all of the pertinent files in the original case. In the last week he has danced around this subject when I spoke to him and never mentioned 38 CFR 3.156 . I thought I would give him exact direction and see how he uses it.

I do not have the quick legal mind like yours and a few of the others, but I can read and I certainly listen to others. I have always said "Common Sense is only Common to people with Experience".

I prefer making common sense decisions and actions, so I try to listen.

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Update. I sent the request for review of my file under 3.156 to my VSO in December. He told me it would be a few days before he could submit it to the RO. I have waited (left him numerous phone messages) for 2 1/2 months on him. I finally was able get him on the phone last Friday March 6. He has done nothing with my request. I told him if he was too busy to take care of my file I would handle it myself. He said go for it. I did. I sent Secretary Bob an email with the info on Monday March 9. I received a reply in less than an hour telling me it was forwarded to management. On Tuesday the 10th, I received a call from the RO. He seemed to have a bit of an attitude at first and claimed they were not guilty of a cue. I politely asked him to listen to me and let me explain why I thought they were. He listened. He reviewed my file and called about 3 hrs later and said he agreed with me, but he would send it to someone and have them review it and the decision would be up to them. Today at 3:45 pm he called and said they had found in my favor and I had been right. 5 yrs of retro would be forthcoming.

Thank you Secretary Bob!!

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WOW.

"I received a call from the RO. He seemed to have a bit of an attitude at first and claimed they were not guilty of a cue."

Technically a CUE is a little different from 3.156 but he knew what andyou meant

you were RIGHT to use 3.156 , a Very powerful regulation,which could bring the same retro that a CUE would have if the decision was approached under CUE.

This is Wonderful News

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