Contention kicked out of NOD

[bakerkd]

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?

[bakerkd]

Berra, they did my initial claim without my SMR's. They granted a reconsideration of ALL using the SMR's but "forgot" to address one of the contentions. I filed the NOD on the reconsideration. during reconsideration I sent in 128 pages of N&M evidence just for that contention. That contention was not addressed at all. It has never been rated against ANY medical records at all