Recovered lost original STRs

[RangerWife]

Hello helpful Hadit community, 

I am trying to help my husband with some claims he originally submitted in 2009, all of which were denied. He never re-filed until 2019 but asked for an EED d/t missing STRs that appear to have been found in 2018. He did a FOIA for his file in February 2019 to see what was in there before submitting his claims again, and as a result, received copies of records that were previously missing and he had never seen before. Although some of those claims were now recently approved/SC'd they denied the EED's because they said HE sent them the records. They are so confused. I have put together the attached timeline with screenshots of their own records to try to un-confuse them. Would love it if some of the experienced folks could look it over to see if I'm making sense and/or if you think this is sufficient as far as an explanation?

Thank you so much! Recovery of missing records_redacted copy copy.pdf

Edited August 6, 2019 by RangerWife

[FormerMember]

One problem I have with using §3.156(c) is that it is not  an automatic guarantee of any reconsideration and an EED.  Just because the STRs surfaced doesn't always guarantee an EED. The first prong of §3.156(c)(1) must be met.

 (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.

Following that "test", §3.156(c)(3)(4) must also be met. If the records in question do not pertain to the disease/injury you appealed and won, you cannot win an EED. If you filed for them and lost in the past and want to reopen using the reconsideration aspect, the newer STRs have to prove entitlement sould have been granted in 1969 based entirely on what they contain. See Blubaugh v. McDonald.

Say you got a SFW in Vietnam in 68. VA granted you 10% in 1969 for one muscle group when you got out. Say those 'new' lost  STRs show you had retained metal frags in 8 muscle groups (MGs)-not just the one they awarded in 69. Say there's still tons of metal and documented muscle atrophy/damage, too. If they give you 10% for each MG now in 2019, then you can say 'Hold the phone, bubba'. The metal has been there for 50 years. Bingo- an EED of 1969 is due for each muscle group.

My latest trick is finding Purple Hearts that were issued in 1970 but not on the 214. This has happened to three of my clients. That instantly provokes a §3.156(c) because of the §1154b combat presumption. Anything you say is the truth. If you were willing to die for Uncle Sam and damn near almost accomplished the task, then your testimony is unimpeachable. On every confirmed ratings sheet, there is a box marked "Combat code". #1 indicates you have no SC combat injuries. #2 means you do. 3 means you have both combat and noncombat injuries. I forget what 4 was for. So, if the 1970 combat code on your rating sheet says 1 and you show proof in 2019 of the Purple Nurple, it would have almost always changed the outcome of the 1970 decision. 

Learn how to play VA poker. You'll discover all kinds of tricks...

[RangerWife]

Thanks for the info asknod - I do understand that it isn't a guarantee of an EED, but he doesn't have any chance if they are completely confused somehow about how they received the records in the first place and won't recognize them as official service records. Once we get through the first gate, then we will have to contend with the second gate. I expect gate two will be too high a hurdle for most of his claims, especially given he missed his C&Ps back then (deployed to AFG after retirement as a civilian and didn't get the notices).

However, they diagnosed multiple disabilities in his separation exam that was performed by the VA themselves, and he filed his claim less than a year after leaving service. Specifically, there is one for tinnitus and if they had the separation exam, it seems like it should have been an automatic award for that one without even needing a C&P. But...I'm just learning all this. 

I do love poker, so I will keep on learning and hopefully catch them on the river.

[RangerWife]

23 minutes ago, asknod said:

 On every confirmed ratings sheet, there is a box marked "Combat code". #1 indicates you have no SC combat injuries. #2 means you do. 3 means you have both combat and noncombat injuries.

This is a side question - but when you mentioned this @asknod, I took a look again at his code sheet and it has a #1 there even though they specifically noted the PTSD as combat/combat medal. Is this something he should worry about getting fixed? Any idea on the best way to get it corrected?

[FormerMember]

Truth be told RangerWife, most idiots at the Regional office don't even know what this means let alone the old codes for it. Here's a screen shot of one of my client's old ratings from 1970. I was incorrect about the code meanings. #1 was no combat injuries whatsoever. #2 was compensable combat injuries; #3 was noncompensable combat injuries such as a 0% for a SFW/scar; #4 was for both compensable and noncompensable disabilities such as 10% for a SFW and 0% for tinnitus. The VA "technicians" now probably have that block on autofill with a default setting of one. PTSD was not considered a combat "injury" as much as a mental "disease" when they first put this entry on ratings forms. In fact, PTSD wasn't "invented" until 1981. Before that it was called a nervous condition or anxiety. If it's any consolation, my combat code says 1, too but then I didn't get all my medals until 43 years later along with a shiny new DD 215 to hang beside my DD 257 General Discharge.