My Nod For Forum Review.

[SpcDearman]

Here is what I will be sending on Monday. i want to have the entire weekend for you guys to opine.

TO: Department of Veterans Affairs

This is a Notice of Disagreement with your rating decision dated 11-1-12 which denied my claim for bilateral shoulder, bilateral knee, and lung condition . I request my claim be afforded a de Novo review by a Decision Review Officer and a Statement of Case (SOC) be prepared and forwarded to me. I also hereby request all copies of my Service Medical Records to be used for review by my private physician.

Thank you.

Disgruntled Vet. (ok i might put my real name here lol)

[carlie]

Here it is for what its worth. The VA does not like NODs. They consider them to be adversarial. Like I said you are on the correct track. Your next step depends on the strength of the IMO you are able to obtain. If it is a strong IMO, written by someone who understands VA law and language, and it is able to refute the negative C&P then I would submit it and ask for a reconsideration based on the newly submitted evidence. I would not even mention the NOD. Once they reconsider your claim then your clock starts over. You will have another year to file a NOD from the second decision if it is denied. This also preserves your earlier effective date of the original claim (good retro).

I would have to strongly disagree with some of the above.

Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.

Submitting additional evidence and requesting the claim to be reconsidered,

does not stop the NOD clock or extend the one year period that the claimant is afforded,

to submit their NOD.

Perhaps others will chime in on this.

http://www.ecfr.gov/....0.1.1.5.4.35.1

20.302 Rule 302. Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case.

(a) Notice of Disagreement.

Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final.

The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(Authority: 38 U.S.C. 7105(b)(1))

(b) Substantive Appeal —

(1) General. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.

The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(2) Special rule in certain cases where additional evidence is submitted.

Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with § 19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a Substantive Appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period.

(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))

© Response to Supplemental Statement of the Case.

Where a Supplemental Statement of the Case is furnished, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.

[rdawg]

http://www.gpo.gov/fdsys/pkg/CFR-2002-title38-vol1/pdf/CFR-2002-title38-vol1-sec3-400.pdf

(h) Difference of opinion (§3.105).

(1) As to decisions not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable.

(2) As to decisions which have become final (by appellate decision or failure to timely initiate and perfect an appeal) prior to receipt of an application for reconsideration or to reopen, the date of receipt of such application or the date entitlement arose, whichever is later.

[carlie]

rdawg,

I have read your reply and continue to have reservations.

I'm still in hopes others chime in on whether that one year NOD clock

is stopped or extended, due to a request from the claimant,

for reconsideration at the VARO level.

I'd also like to see some case law on difference of opinion as applied to effective date

versus medical opinion/ N&M evidence.

Hope this makes sense.

[SpcDearman]

what we decided:

Description:

Right shoulder rotator cuff tendonitis, glenohumeral joint arthritis , and labral tear

Denial Reason:

We do not find a link between

Right shoulder toator cuff tendonitis, glenohumeral joint arthritis , and labral tear

The veidence does not show that:

We do not find a link between

Right shoulder toator cuff tendonitis, glenohumeral joint arthritis , and labral tear developed to a compensatable degree within the specified time period after release to qualify for presumption.

Your Va medical opinion dated (!!!!!!) found no link between your diagnosed medical condition and military service.

SMR's showed complaintsafter a tank rollover but mild montusion was listed. There were no aditional complaints, diagnosis, or treatment related to the shoulder while on active duty. Upon examination, diagnosis of your right shoulder toator cuff tendonitis, glenohumeral joint arthritis , and labral tear were listed and the examine opined that your disability was not likely realted to the contusion noted during military service. It was noted that an acute episode of shoulder contusion does not represent a significant enough trauma or pattern of trauma to result in your current condition.

Explanation:

The VA medical opinion fromthe Dallas VA medical Center dated () found no link. Your SMR's do not contain complaints, treatment, or diagnosis.

Whew. Scanner was down. Carpel Tunnel now VA..

Now what it fails to mention is. I happened to get the REAl C&P examiners "opinion". I will put that on tomorrow.

[broncovet]

Carlie...

The issue you brought up about N and M evidence is addressed here. Since this has been done by the NVLSP, I consider it to be a fact. Facts of law, however, can change with new CAVC Federal Court or Supreme court decisions.

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

[carlie]

bronco,

That's a good link with some great case law for reference.

My disagreement is in regards to (as I posted),

"Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.

Submitting additional evidence and requesting the claim to be reconsidered,

does not stop the NOD clock or extend the one year period that the claimant is afforded,

to submit their NOD."

and

"I'm still in hopes others chime in on whether that one year NOD clock

is stopped or extended, due to a request from the claimant,

for reconsideration at the VARO level."

I do not see that submitting N&M with a request for reconsideration,

still does not stop the NOD clock on the prior decision.

If the "reconsideration" decision remains a denial, and a form 9 is submitted

that continues the appeal, I feel BVA will come back with, a NOD was not submitted

in a timely fashion on the original decision that denied.