Wife Was Denied Twice. Just Found Evidence This Past Weekend. Please Assist.

[pilgrim01]

Hello all! My wife was in Desert Shield/Storm. She hurt her back while serving during that time. She even was on quarters (in her tent) because of this injury. Well a few years ago she filed for disability for her back and was denied. She showed how she was on pain medication and receiving epidural shots for the pain. She also had a statement from another soldier that served with her that was a witness. They still denied her. Proper documentation was not documented because we were at war. She injured her back while making sandbags and carrying and exposing human waste. Well, this past weekend while looking through storage containers for pictures, she found an official form that had her back injury documented on it when it had actually happened!

Also, while in Desert Shield/Storm, my wife was exposed to Chemical Warfare Agents (the letter was attached with original claim) which had been well documented as a possible cause of cancer. Well, my wife was diagnosed with breast cancer in August 2005 and even had a mastectomy and she had to have plastic surgery. That was also denied on the same request.

In her last letter from the VA, it stated that her case was closed unless there was new evidence. Well, this is new evidence, right?

What should we do now in regards to the back pain and her breast cancer? Any and all assistance would be greatly appreciated. Thank you all!

[Notorious Kelly]

Good news you found that evidence! If you persevere you will win, but I'll let the more informed tell you how.

Good luck!

[kate7772]

If it is within the year time frame, I would file a request for reconsideration with new evidence. Some people don't agree with the reconsideration route but my husband and I have found it to be quicker and works well. Just be aware of the time and don't allow the one year date to pass so you can file an appeal if you need it.

When you file, send in all evidence of a connection to service, especially for the breast cancer. Also, if you can get a IMO, that would be especially helpful.

Good luck

Kate

[broncovet]

38 CFR 3.156 covers such a contingency.

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:

[Navy04]

Sorry to hear of her issues, it sounds like if you re open claim with back evidence, it should be granted. As far as breast cancer, I don't know bud. Good luck and God Bless

[jbasser]

Send in a reconsideration request and quote 3.156C. They will still give you a hard time but you will win.

J

[pilgrim01]

Thanks, all, for your responses. You all are truly a big help. So, she should file a Reconsideration Request? I believe she had already filed a NOD, which was denied. So, she should file a Reconsideration Request for the back and what should she "re-file", if anything, for her breast cancer?