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Mike G FL

Lost Medical Records now found constitute a CUE

Question

First thank you for creating this page.  It's been a twenty years fight and reading these pages has made me feel for the first time I'm not alone in it. Active Army 88-92. Last six months in Egypt on a MFO tour. While there I got very sick. It was my last six months of service and ETS two weeks after returning to FT Drum. Six months after I got out started get sick again. Diagnosed with Ulcerative Colitis. Fought it for two years but lost and had my colon removed. Started developing other issues very similar to what they were calling Gulf War Syndrome. Applied for DC in 1997. I was denied do to lost medical records. Applied again in 2004. Again denied because of lost records. I had no new evidence to appeal and given up any hope. Family convinced me to try one more time this year. Just had my exam and they found my records. They made service connection. Now my question is, because they found service connection with my service records do I have  case for cue going back to 1997 since they lost my records for twenty years? Also should I fight my rating first then go after the back pay? I'm not sure what to do next other than get an attorney. Sorry if this is too long and if this has been addressed already. I couldn't find a similar question or case. Appreciate any help or advice.          

Edited by Mike G FL
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3.156C

(c)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 (c)of this section are met;

 

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Thank you jbasser. Correct me if I'm wrong but I believe that's says they have to go back to my original claim? With an approval of service connected disibility would they really go back to the original 1997 claim? Would it be based on today's rates? I'm assuming nothing will happen without a fight. Any chance I won't have to? Seems silly even asking that but one can hope. 

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Everything with the VA involves a fight. You NOD a decision if within 1 year of a denial or if too late, cue the original decision. If you win it goes back to 97.

 

J

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Basser was right on, and I was thinking the exact same thing.  38 CFR 3.156 b will clarify things for you, even tho 3.156 C is your "winner winner chicken dinner":

Quote

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.

You should not have to "raise your standard of review" to the difficult level of CUE because of 3.156 C and B.  Instead, you get the benefit of the doubt, and dont have to even try to look up the old laws when you applied, which are different than what they are now.  (Cue is only cue when its error occurred under the laws at that time.    You have to hit this ball, but the pitch should sail out of the ball park if you hit it right.  I would like to be YOUR lawyer, which you may need as VA will AGAIN and AGAIN give you bogus reasons as to why they should deny you.  Remember, if you swing at their "wild pitches" 3 times, you still strike out.  They will throw you "wild pitches", too.  

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The Basser Man is RIGHT!!!!

1. The criteria for assignment of an earlier effective date of August 12, 1986, for the award of service connection for PTSD, are met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.156 3.400 (2016). 2. The motion for revision or reversal of the November 2004 rating decision on the basis of clear and unmistakable error is dismissed as moot. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016)."

 

https://www.va.gov/vetapp17/files2/1713369.txt

The vet has a bad conduct discharge originally which was changed to HD.

The decision says:

"This appeal was initially certified to the Board as a motion for revision of the November 2004 rating decision on the basis of CUE. For the reasons discussed in greater detail herein below, the appeal is actually a direct appeal for an earlier effective date for the award of service connection for PTSD. As such, the Board has recharacterized the issue on the title page."

In other words, as the full decisions shows, the CUE became moot due to the appearance of the missing STRs....and the Earliest effective date (EED) was awarded.

This Cue  awarded back to 1993:

https://www.va.gov/vetapp14/files4/1431325.txt

In Part:

(BTW -the vet's attorney was Ken Carpenter, one of the best there is-and one of the first vet attorneys I ever talked to years ago....as an advocate- not about my claim...maybe he would do a radio show with us sometime...)

"ORDER The May 2002 RO decision was clearly and unmistakably erroneous because it failed to reconsider the Veteran's initial claim as required under 38 C.F.R. § 3.156(c)"

and:

"The Veteran contends that the RO committed CUE in its May 2002 rating decision by failing to award an effective date of October 15, 1993 for the grant of service connection for PTSD. For the reasons set forth below, the Board agrees."

It doesn't get any better than that!!!!!!! We have plenty of info in our CUE forum and on 3.156(C)

And there are many other similar awards here and at the BVA.

Odd how many involved PTSD........

 

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