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Contention kicked out of NOD

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bakerkd

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Going to try to keep this long saga short. Filed initial claim July 10 and received decision Oct 11. Virtually everything denied since SMR's magically disappeared sometime after Nov 10. Overnighted my copy of SMRs about a week before decision but they just sat in VARO mailroom. I requested a reconsideration of all contentions due to being rated without records that, were in fact, in VA's possession. Reconsideration granted for all and got improved ratings for most. This was in Apr 2012. After scouring the decision letter I noticed that one of the contentions wasn't addressed It was just left out of decision all together. I filed NOD in February 13 after searching for as much medical evidence as possible. 

Now fast forward to today. 40 months into my NOD/ DRO I get letter stating that the contention that was left off my reconsideration in Apr 12 cannot be considered in NOD because the 1 year statutory appeal period was exceeded. Basically, even though they granted a reconsideration,  I couldn't appeal the contention that was left out because the date of decision was the first denial of service connection, done without any SMR's. 

I sent them a cordial message in IRIS stating that the NOD was for the reconsideration of ALL contentions but that they were in error for omitting it in deciscion letter and that the date of denial should be Apr 2012 based on their CUE.  Regardless of whether they consider it with the NOD, where the hell is my rating? They have had new and material evidence for 5 years and have had a reconsideration and a NOD requesting it be eval'd. To this date they have never matched my SMR's including new and material to this contention.

I now have 6 years invested in this. Should I wait and see if they magically admit they screwed up or file a new claim and spend 5 or 6 more years trying to get effective date fixed? Any suggestions?

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I feel your pain. At my 06/14 DRO Hearing (went Informal), DRO told me he could only address the Disputed issues listed in my NOD, filed back in 2010. It didn't matter that on all my NOD filings, I indicated my VSO-Rep had listed my PN as upper extremity, rather than lower extremity. The Decision Denial on appeal, was the Upper extremity.

The take away was, and I realize now, I should have immediately filed a New Claim for the PN back in 09, when I 1st realized the error. I was an FNG, like every other Vet, new to the VA Comp Claims arena. Haven't made that mistake since.

Tough luck on your loss of Retro but it's time to file an FDC. At least, you should be able to get an Award Decision much faster now.

Semper Fi

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You will wait a very long time if you "wait" for VA to admit error.  The last time that happened was just before Christopher Columbus made it to the east by sailing west.  

Your issue remains "pending".  Its the "pending claim doctrine".  While the VA can/has/does have something called a "deemed denial", newer case law suggests that the Veteran has to know the unaddressed issue has been denied.  I dont know what your decision said, but you can look up case law on "deemed denials" at the CAVC, or in this forum.

Since you have reopened the issue, and it remains unadjuticated, this sounds a lot like CUE to me.  The VA owes you a decision on this issue (you call it a "contention") per 38 CFR 3.103.  

On "reopened claims" the VA owes you, at a minimum, a decision as to whether you submitted sufficient evidence to reopen.  By the way, its a "low threshold".  In other words, if you resubmit evidence that COULD prove your claim, then the VA has to reopen it due to N and M evidence.  It does not mean they have to award the claim, it means they at least owe you a decision that the evidence you resubmitted is (or is not) sufficient to reopen claim.  Absent said decision, your claim remains pending.  

Here is my suggestion, tho, I can tell you it may/may not work.  

1) Re Apply.   

If VA awards for this issue, then you will may have to appeal the effective date.  

If the VA denies this issue, then you can appeal.  

However, right now you are stuck in limbo, where VA does not want to allow an appeal, and (apparently) they dont want to adjuticate.  This goes against the supposedly pro claimant, non adversarial process.  

2)  An alternative is to write VA, and ask them to adjuticate your issue.  If they do not, then you can consider a writ of mandamus to compel them to adjuticate your unaddressed issue.  

3)  Last you can file a Cue for failure to adjuticate per CFR 3. 103

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Reopen w/new evidence will probably not get you retro.  If you can document the facts that exist in your CFile, and if they show with out any question that you should have been awarded SC for your condition, the CUE will have an effective date from the original claim filing.

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PWR

    It depends on several things whether reopining under 38 CFR 3.156, if it will result in retro. The two main issues on 3.156 retro are:

1.  Is this new and material SERVICE RECORDS?  This should mean retro.  

2.  Did the Veteran reopen "in the appeal period"?  This should mean retro. The "appeal period" means if its within a year, OR, if the claim is under appeal, regardless of whether its within a year or not.  See 38 CFR 3.156 especaially highlighted in red, below:

§ 3.156 New and material evidence.

(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.

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Ok thanks. I'm still a bit confused. VA is saying NOD not filed within 1 year of denial and technically that's true. I NOD'd the reconsideration which ate up nearly 8 months of my appeal time. I almost didn't even notice it was left out. The reconsideration was all new and material since my SMR's weren't even looked at. I submitted an additional 128 pages of new and material within that year as well. 

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A Reconsideration Request does not stop the year NOD clock.

"The reconsideration was all new and material since my SMR's weren't even looked at.  "

You mean they never once listed the SMRs as evidence?

If your SMRs were critical to your claim ( sometimes they aren't in cases of secondarys claimed for established SCs)

it is a CUE if the VA failed to obtain or consider them. Violation of 38 CFR 4.1 et al, noted under 4.6)

"Basically, even though they granted a reconsideration,  I couldn't appeal the contention that was left out because the date of decision was the first denial of service connection, done without any SMR's."

Did they have the SMRs when they granted the reconsideration?

 

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