Could The Below Eed Situation Pass The 3.156C Requirement?

[add55p]

All

Can you assist me in determine if an earlier effective date claim should be considered based on the following scenerio. I am alittle confused because 38 C.F.R. § 3.156© provides that “if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back to filing of the original claim.

Scenerio:

Filed Claim 1999- Va Denied 2000- Reson Denied: No evidence of to indicate that condition was incurred in service; no service treatment Records and no evidence treatment shortly after separation-Did not appeal and Became Final

Refiled 2003-Va received a few service treatment records-but doess not list them in there 2004 decision, which again denied the claim for the same reason as 2000 decision. I filed a NOD and sent them copies of the two in service treatment records that supported my claim. VA sent me an SOC which acknowledged the in service treatment, but stated that no chronic diagnosis was mentioned. Unfortunately, I wasn´t smart and let this on go final as well.. I KNOW!!!!

Refiled 2005- this time I submitted Nexus and the 2 in service treatment records, and buddy statement. Claim sat for two years after the VCAA notice, then denied in 2008. Reason: While nexus was new, it was not material. Denied for same reason used in 2000.

Submitted NOD within one year of 2005 decision. Waited and waited and finally received a statement of the case in 2008 which continued to deny claim. Va again listed the 2 in service treatment records in the evidence section.

Submitted VA form 9 in 2008 with Statement from Nurse wife and Dr. addendum to nexus that really detailed the facts in date order with very good rationale.

Claim certified to BVA in 2010.

Waited and waited. Early 2013 received a supplemental SOC stating that claim was awarded with an effective date of 2005. In the decison it states "although the majority of service treatment records are unavailable, one service treatment records, dated May 1997 has been associated with the claims file and reveals that the bveteran was seen for a possiblestrained muscle x 3 days. The impression was noted as lower quadrant (abdomen) and the veteran was limited to no lifting over 10 pounds. The veteran has clarified that he sought treatment in 1997 for both pain in back and abdomen. We find that this evidence weighs in favor of the Veterans contention that he sustained a back injury in service" The dececision also mentions the second in service treatment record as being weighed favorably and supports my contention.

The SSOC also mentioned the 2 in service treatment records when discussing the favorable Doctor nexus.

What I am concerned about is that, while the first decision in 2000 did not mention the 2 in service treatment records, they were mentioned in a denied decision prior to the claim that was awarded in 2013.

Please let me know if you think this has a chance for an earlier efffective date.

Thank you..

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[broncovet]

It does not matter if its a treatment record or a full exam. If you want to do a good job on your appeal, then you need to order your cfile. If you have an attorney, that is the first thing he will do. Otherwise, we are just "guessing" what doc xx said on whatever day. This doc report may or may not be favorable evidence, it sounds like it was.

You did not mention if this is in increase in severity or not. The effective date rules are different for an increase, than a new claim.

Without your c file, it becomes hearsay or "he said she said". With your cfile, you can cite the doc Smiths report on 11-09-99, and state what he said. Its always evidence which wins claims, and its very difficult to cite evidence you are not sure about. I did not want to order my cfile either until I really understood how important it really is. Its your choice and your life..you can order the cfile and know whats there or take chances with your benefits.

[add55p]

Broncovet

It was an initial claim for benefits.

Will I have to order a copy of my claims file from VA or the records management center now that the

claim is inactive?

Thank you for the reply and advice!

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