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CUE and medical evidence.

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Berta

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This point I made before bears repeating-----

A valid CUE rests on established medical evidence- meaning the medical evidence must have been in VA's possession at time of the alleged decision holding potential CUE.

And another point- some one- forget who- mentioned they received SSDI for the same SC disability they hve and were sttemmpting to file CUE for a better EED.

If they never advised VA of the SSDI award, and made sure they signed an authorization form for VA to get those records, the SSDI award is not going to provide them with a better EED.

Same as Voc Rehab- If the VA has stated that Voc Rehab is not feasible for you solely due to your SC diabilities, that is good evidence for TDIU, or 100% SC-

In that case the VA Should have those Voc Rehab records in their possession- because it does not matter where the VA's 'possession" of records lies but you might have to provide them with the actual documentation of the Voc Rehab denial because, as I learned the hard way, those records are not part of your medical records r your C file in many if not most cases, as Voc Rehab is a different VA department.

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26 minutes ago, Berta said:

I believe you mean 38 CFR. 3.156 (C)(3)as to newly discovered service records, that would mandate the VA to re open the claim and the if the claim succeeds, it would mandate the original claim date as the EED ( which would also depend on the % granted on the original date of claim,regarding the retro.

 

This BVA case shows 3.156 in action:

https://www.va.gov/vetapp18/Files1/1804907.txt

Yup that is what I meant. 

I am going to use 38 CFR. 3.156 (C)(3) in order to challenge the effective date once my claim is complete.   If that fail (which I can't see at the BVA level)..... I think I also have a CUE.   In all my denial the VA stated that there were no complaints in service for my foot disabilities.  In 2002 they denied it saying it was not well grounded because I did not provide additional information.   In 2009 they said no complaints in service.  In the denials they state that they viewed my SMR's from 1986 to 1996 (my dates of service).   I get my C-File and find clear as day the claimed disabilities in my SMR's 

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1 hour ago, JKWilliamsSr said:

There was a recent decision about this pertaining to SMR's.   Where it stated that regardless of when SMR's appear the effective date will be the original file date.   In this decision you do not have to prove the records were before the adjudicator or not.  It does not matter. 

I am going to see if I can find this decisions. 

EDIT:  https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015778/Stowers-v.-Shinseki,-May-16,-2014,-26-Vet.App.-550

In that case, the VA tried to rely on 3.156(c) to grant a later effective date and the court set them straight.

VAOPGCPREC 12-95 applies to content created by the VA or in their possession. I'm about to use it to appeal my CUE where the VA misplaced a C&P exam and brought me back for another one. Of course, in my case service records are not part of the situation. Should be fun...

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