How to present new evidence in request for ABCMR relief?

jstock7894

PEB Forum Regular Member
#1
As I have been researching previous corrections board cases, it seems that whenever a veteran requests a higher disability rating, they always just ask for the rating they think they deserve. If a veteran has medical evidence that proves a higher rating, is it better to ask the board to just accept that evidence and re-rate accordingly per the VASRD instead of just requesting a higher rating? The end result should be the same, but it seems the boards always tend to think there is no error to correct because they rated it properly per the VASRD. Yes, in essence they did rate it correctly the first time, but that is not always the issue. The error is they didn't have the most current data to rate on, or that the unfitting condition worsened before separation. In my situation, I was part of the legacy processing, so I had two exams, one DOD, one VA. My DOD exam was in March 2011 and had my lumbar ROM at 60°, while my VA in November 2011 had me at 30°. I didn't have access to the results of my VA exam until after I was discharged in February 2012, so when I concurred in December 2011, I had no idea, or evidence, that it was wrong. Now that I have it, it's the one thing I have to use as new evidence to present my case. I almost think it's better to state my case that relief is warranted because my condition worsened before the PEB portion of processing, let alone before I was discharged, and here's the proof, please use it to rate me. I guess my concern is, based on some cases I have seen, they don't even care there is new evidence. It wasn't in the PEB packet they used to rate, so there is no error in their eyes. They rated from what they had, so it's not their fault you got worse before being discharged. Hell, I would think evidence of a worsened condition before discharge date would prove their was an error as the condition wasn't stable to rate anyway.
 

jstock7894

PEB Forum Regular Member
#2
I found a court case that I think is interesting. R.R. vs The Department of the Army, the court mandated that his medical records be updated based on new evidence the plaintiff filed previously through the ABCMR, but was denied. In cases where new medical evidence would make a difference by having them added to service records, would it be a good idea to have two separate requests in the case, first is to update medical service records from the new evidence and second to be awarded a new rating based on that evidence? In my case, since I was discharged in February 2012, it would be pertinent to request adding my VA exam from November 2011 to my service medical records , and then requesting the 40% for my DDD due to my 30° ROM from that exam? Just a thought.....
 
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