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usmcthysin

Not Sure What To Do

Question

I was honorably discharged from the USMC last year on April 7th and filed a claim for disability in May of 2008 for: Left shoulder instability(had 8 anchors put in while AD to keep from dislocating, right shoulder instability(subluxates), pain in upper/lower back, flat feet(went in with full arches came out with none), and tinnitus. Everything was goin good for a bit but eventually I got extremely depressed and started drinking constantly so when my C&P exam came up, I didn't show(stupid!). In September 2008 I got a letter from the VA stating that they denied my claims due obviously to my absence at the exam. In the letter it also says that each one of my claimed conditions were supported by my medical record and if I showed a willingness to be examined they would reconsider the claims.

When February came along I had deteriorated a lot mentally, I walked out on my job and never came back, almost lost my wife and was arrested once for disorderly conduct(case deferred as long as I sought help with the VA). So I proceeded to call back into the VA and get the claim going again. I told the guy I got on the phone about what all happened and he said that it would be best to just open a new claim with those disabilities and close the old one as opposed to appealing because that would take much longer. He typed it all up and told me to go to a VSO near me and tell them what was going on and they would help me. The new claim had PTSD added because of my mental state(was diagnosed at my exam with PTSD). Now I got a letter in the mid-last month saying they were working on my new claim with that listed bilateral hearing loss(never claimed that but I guess the guy on the phone did that), PTSD, bilateral knee condition, and shin splints(didn't say this one either). The second part of that letter had all the disabilities from my first claim and said I had been denied those and that if I wanted to get reconsideration I would need to show further evidence. I went down to the VSO I was talking to and showed him all of this and he just said 'don't worry about it'. I also submitted a claim status request on IRIS and got the same reply about appealing the first claim, they also said I would only get backpaid to the day of the claim, not the day after I left AD. Also I should mention that I've already went to my C&P exams for the new claim and everyone there at the hospital was checking me for everything from my new claim and my old one.

The IRIS guy also said this:

Since these conditions have previously been denied, unless you appeal these conditions, your new date of claim will be January 30, 2009, as the date you opened a claim with the above mentioned conditions, as well as for bilateral hearing loss, PTSD, bilateral knee condition and shin splints. (The four 'new' conditions are not retroactive to your Release from Active Duty (RAD) date as only the claimed conditions the VA receives with your first claim filed are retroactive to your RAD date.)

1--You may appeal our decision as noted in our decision letter to you dated September 29, 2008. Please note the appeals process may take a year or two for the decision to be rendered. If the evidence and decision is found to be in your favor, you will be paid retroactively to the date of the claim.

2--You may fax in a letter to your Phoenix VA Regional Office requesting that you would like to request that the current claim that is open REMOVE these five conditions and REOPEN the claim for left shoulder condition, right shoulder instability, bilateral flat feet, upper and lower back condition and bilateral tinnitus. Please mention in the letter that you would like this reopened as you were unable to make the C & P examinations at the time. If the evidence and decision is found to be in your favor, you will be paid retroactively to the date of the claim.

So basically I'm fairly confused and wondering what I should do, any help/insight would be greatly appreciated.

Thanks,

Greg

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Hi & Welcome to Hadit.

It is true that your effective date will not be the day after you were released from active duty.

Your effective date is the date of your claim filing. Since you missed your first C&P exam...the VA will most likely use the new claim date (being as it was your fault; not theirs). Of course you could appeal this....but it would be highly unlikely it would be granted.

One thing to remember when dealing with the VA...never, ever, ever miss an appt date or a suspense date.

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I was wondering since when I went in for the examinations and they checked all of the problems with all of my old claims, can I use copies of their own examinations that acknowledge the previous issues as further evidence showing the connections with the first claim(since they need more than the fact the issues are noted clearly in my medical record). That'd be kinda funny but it's all I have other than my medical record. I'm not one to shift responsibility of my own actions so it's hard for me to say the reason I didn't come to the first one was that my mental state was going downhill, although I didn't know why(but now shown to be PTSD). Would it be stupid to use that to appeal the backdating?

I also just remembered what the VA employee I spoke to on the phone said exactly what the IRIS guy said about closing the old one and opening a new one. Two things I see as being wrong here are the fact the man on the phone did not inform me about the loss of backdating to my RAD and the VSO I attempted to explain this to did not take the time to listen to me and prevented what needed to happen from happening(I tried to tell him everything that happened in my original post but he assumed he knew what I was saying because he wouldn't let me finish and kept saying "Don't worry about it"). In this case I don't think I am wrong in saying that those issues were largely the fault of the VA employee and my VSO(obviously partly mine as well for trusting them to know what they were doing). Would any of this make a difference in the current situation?

Thanks again,

Greg

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I've just emailed a few Vet Claims lawyers in D.C. and I'm gonna see what they say, I'll probably post it on the appropriate forum before I say yea/nay to anything.

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All you have to do is ask to reopen your previous claim. State that you missed your C & P exam, but will gladly go to another one. Because you reopened your claim within one year you will still have your original effective date. The new issue will still have the same effective date as long as you do it before April 7th. Time is running out. GET ON THE BALL :D

TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 3 - ADJUDICATION

3.400 - General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (Authority: 38 U.S.C. 5110(a)) (a) Unless specifically provided. On basis of facts found.

(:lol: Disability benefits(1) Disability pension (3.3). An award of disability pension may not be effective prior to the date entitlement arose.

(i) Claims received prior to October 1, 1984. Date of receipt of claim or date on which the veteran became permanently and totally disabled, if claim is filed within one year from such date, whichever is to the advantage of the veteran.

(ii) Claims received on or after October 1, 1984. (A) Except as provided in paragraph (:lol:(1)(ii)(B) of this section, date of receipt of claim.

(B) If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of 3.342(a) do not apply.

(2) Disability compensation(i) Direct service connection (3.4(B)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

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I hope you get it lined out.

You need to play the game and dont miss any more appts.

That just gives the RO ammunition for an adverse reaction and they will exploit the no show to the full extent of the regs.

Dont be surprised if they diagnose you with PTSD or depression. ( Another claim)

J

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