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Failure To Provide Medical Evidence Since Service


hollyh1344

Question

The VA requested that I provide medical evidence since service. I failed to do so, so service-connection was denied. I did not appeal in a timely manner. (Stupid, stupid, stupid....I know)

If I successfully re-open the claim and establish service connection, if there any chance of them giving the original claim date as the effective date? Or has that ship long ago sailed?

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I agree with Marine on this one, but in my case I did not want NODs or Appeals, so I just reopened everything and after a few FDCs, they are all going to be granted. Good luck

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  • HadIt.com Elder

The VA often does this, in spite of the fact that the condition is documented as originating in service.

Without all the details, it's impossible to say if the denial constitutes cue.

Actually, the condition might not require treatment, or treatment would be ineffective.

The VA also seldom follows the "letter of the law".

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I agree.

CUE is like the Watergate question:

'what did they know and when did they know it.'

If VA was aware of any private medical records you had, they should have attempted to get them, but from what I see here,

they might have had nothing to try to get and had no choice but to deny.

Hard to say, as Chuck stated, without seeing the denial but that would not matter yet anyhow because the re opened claim for SC would have to succeed before even considering potential CUE in the older denial.

Edited by Berta (see edit history)
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The conditions that were denied service connected were low back condition, bilateral hip conditions, and bilateral ankle conditions. (I was medically retired for those exact conditions, btw) Basically, most of the pain I was having post service could be controlled with OTC meds, exercise, rest, and lifestyle accommodation. I don't believe I was receiving any medical treatment immediately after service. I would understand if they would rate the conditions around 10%, due to the lack of severity, but I believe it should have been service connected even without post service medical treatment. As I'm getting older, the conditions are worsening, so I'm hoping to get the issue cleared-up asap.

I'm anxiously awaiting my C-file so I can review it with my VSO. I do not have a copy of that original denial. Is anyone aware of any appeals where service connection was granted despite last of post service medical records? I'm confident that I can get the claim re-opened and service connected now, and I'm in the process of doing so, but if I could argue a CUE for an EED, that would be even better.

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Holly go to ebenifits sign in and you can get info from your cliam. They did same thing to me. They wanted current diagnoses. My injuries can't be corrected. I got current diagnoses and just sent a NOD. I think It may be faster to send in new fdc but I did it the way they instructed. Time will tell.

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  • HadIt.com Elder

The conditions that were denied service connected were low back condition, bilateral hip conditions, and bilateral ankle conditions. (I was medically retired for those exact conditions, btw) Basically, most of the pain I was having post service could be controlled with OTC meds, exercise, rest, and lifestyle accommodation. I don't believe I was receiving any medical treatment immediately after service. I would understand if they would rate the conditions around 10%, due to the lack of severity, but I believe it should have been service connected even without post service medical treatment. As I'm getting older, the conditions are worsening, so I'm hoping to get the issue cleared-up asap.

I'm anxiously awaiting my C-file so I can review it with my VSO. I do not have a copy of that original denial. Is anyone aware of any appeals where service connection was granted despite last of post service medical records? I'm confident that I can get the claim re-opened and service connected now, and I'm in the process of doing so, but if I could argue a CUE for an EED, that would be even better.

The basic argument goes something like this.

The injury(s)/conditions were/are documented in service records. The conditions, by their nature, become more serious and debilitating with age. Since they originated in service. and there are no intervening causes, they must be considered service connected. Assuming you have any current treatment records, Doctor's statements, etc. naturally. The VA wants something to connect the existing condition with the in service condition, even when it's the same condition. This implies that some sort of treatment history is needed, even when that not really required. What is required is an IMO/IME that ties the in service condition to the present condition.

I actually have a claim in the appeals process that is similar, in that the condition is well documented in service records, is permanent, requires no treatment, is compensable, and yet was denied, citing a reason that is not a requirement in Title 38 or the M21. The RO just wanted to deny, and generated a reason.

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I missed my appeal time as I was denied service connections on several contentions with the VA saying there was no prof in my STR. I never opened a new claim I emailed my RO and presented the evidence that was in my comp file all along and proved they had position of the evidence that would have proved service connection at the time of denial. The Ro opened those contentions back up it took them two years but they back paid to my original date of claim of 4 years prior.

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This sounds like another case for regulation 38 CFR 3.156. See if it applies to you:

3.156 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)
© 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))
Cross References:
Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).
[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]
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