How to proceed?

[Shotlife]

Good evening,

I want to apologies about dropping so many questions.  I half assed my claims all of these years and am finally motivated. 

One of my original claims that were denied was a shoulder injury I suffered during PT 45 days before I got out. I was denied out right for 'no evidence to warrant service connection for a chronic disability associated with your right shoulder. '

On my final physical it was noted I had a ' suprascapular rotater cuff strain.'  Of course it wasn't chronic yet, it was fresh. I also checked painful shoulder. 

They also denied device connection for tooth injury residuals.  On my dual physical I also noted admission to a  CSH for severe tooth infection, had oral surgery with a cyst removal from jaw.  As well as a severe allergic reaction to the medicine they gave me. 

Is this enough to be considered new material evidence?  How would you go forward? 

 

[broncovet]

Yes.  This should suffice, especially if your denial stated there was no evidence of an injury in service.  38 cfr 3.156 C, is a powerful regulation.  

(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)

(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;

(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 (c)(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 (c)(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))

 

[Gastone]

SMRs, Private Dr/Hospital records and VMC Tests and Treatment Notes that were in your C-File prior to the Award/Denial Decision Date are considered Evidence of Record "EOR."

Sending copies of any VA "EOR" is not considered submission of N & M Evidence.

Post a redacted copy of your Denial Letter, including the Raters discussion for Denial and Evidence Reviewed. Ask your POA-VSO to check your C-File for your SMR Evidence, then you'll know.

File a VA FOIA request for your C-File and another for all your SMRs. You need to know what the VA has Record wise.

[Gastone]

Bronc, Early Bird, get's the worm.

[broncovet]

Yes, Gastone, but we dont know if those records were in VA's possesion or not.  It happens quite frequently, that the Vet thinks that evidence is on record, while it is not.  This is precisely the reason for 3.156 C when in service records were missing, then found.  

 

If those records WERE in VA's possession, then the reasons and bases should state WHY the records show an "event in service", and it was still denied.  Of course, VA does not often do that, but this can be fixed on appeal, provided that VA hasnt already reopened the case due to 3.156 c.  We dont know that, either.  

The Veteran needs to figure out if the case has been reopened, and, if not, why not.  You are correct, Gastone, that if this evidence was already in the RBA (aka known as the Evidence of Record), the VA wont reopen it as it would not be new evidence.  

Its a problem for the VEteran to figure out if VA denied because they did not read our evidence or because it was never there to read, and the appeal route varies depending on which of those it is.  It often takes a year or more for VA to send our records (even after we request them), so we remain in the dark.  When represented by an attorney, one of the very first steps the attorney takes is to obtain the EOR.  THAT sometimes takes attorney's a year also, and the Vet gets mad when "nothing has happened" with his claim after a year.  Often, this is not the attorney's fault, the delays are equally as frustrating for the attorneys as they are for us.  They dont get paid until we get paid.  

[Shotlife]

[Shotlife]