Hello, I'm Scott. I'm New To Hadit And Have Problems With The Va. I Need Help!

[KILO 3/5]

• My initial claim for Larynx Operation was submitted March 24 1999.

• The addendum sent with the March 24, 1999 claim is in my VA record and can verify that Larynx Operation is one of the issues I claimed March 24, 1999.

• The St. Petersburg Florida Regional Office had my March 24, 1999 claim for Larynx Operation and other issues for ten years without taking any action.

• After ten years of no action on my March 24, 1999 claim, I submitted another claim September 14, 2009.

• On October 15, 2009 the St. Petersburg Florida Regional Office mailed a notice to me stating they were working on my claim. It listed all the issues I claimed on the September 14, 2009 claim which are the same issues I claimed on the March 24, 1999 claim.

• On January 6, 2010 the St. Petersburg Florida Regional Office mailed a second notice to me, this time stating they had received my claim. This second notice listed the rest of the issues from the March 24, 1999 claim.

• The issues they added are not on the September 14, 2009 claim. They were from my March 24, 1999 claim.

• They had found my initial claim from March 24, 1999.

• Larynx Operation is listed on the initial March 24, 1999 claim and on the September 14, 2011 claim.

• The RATING DECISION of July 29, 2011 backdated all awards (0% and up) to the date I submitted my initial claim (March 24, 1999).

• The July 29, 2011 Rating Decision deferred three issues: Residual of Larynx Operation, Psoriasis Elbows, and Chronic Headaches.

• The above three deferred issues are claimed on my initial claim of March 24, 1999. Residual of Larynx Operation is also on my September 14, 2009 claim.

• The May 9, 2013 Rating Decision awarded 0% for Chronic Headaches backdated to March 24, 1999. The initial date of my claim.

• A deferred issue on the July 29, 2011 rating decision.

• The May 9, 2013 Rating Decision awarded 0% for Psoriasis, Elbows backdated to March 24, 1999. The initial date of my claim.

• A deferred issue on the July 29, 2011 rating decision.

• The May 9, 2013 Rating Decision awarded 10% for Residual of Larynx Operation backdated to September 14, 2009 (A deferred issue on the July 29, 2011 rating decision).

• Larynx Operation is listed on that initial March 24, 1999 claim and on the September 14, 2011 claim.

• The 10% award is given a later effective date (September 14, 2009) than the 0% awards are given (not the date of the initial claim for Larynx Operation).

• The claim for Larynx Operation had never been adjudicated, not until the May 9, 2013 decision.

• The award should be backdated to the date of the initial claim for Larynx Operation, March 24, 1999.

From the outline above, can anyone advise as to whether or not I have a case for appeal.

[Notorious Kelly]

Scott,

Good detail in your post; sorry your claim got waylaid.

Hopefully someone with knowledge will give advice. All I can say is welcome and good luck!

[KILO 3/5]

Notorious Kelly,

Thank You for your welcome post. Did I post my question in the wrong forum? I know there are a lot of smart people on this site but none have been able to advise.

[carlie]

• My initial claim for Larynx Operation was submitted March 24 1999.

• The addendum sent with the March 24, 1999 claim is in my VA record and can verify that Larynx Operation is one of the issues I claimed March 24, 1999.

• The St. Petersburg Florida Regional Office had my March 24, 1999 claim for Larynx Operation and other issues for ten years without taking any action.

• After ten years of no action on my March 24, 1999 claim, I submitted another claim September 14, 2009.

• On October 15, 2009 the St. Petersburg Florida Regional Office mailed a notice to me stating they were working on my claim. It listed all the issues I claimed on the September 14, 2009 claim which are the same issues I claimed on the March 24, 1999 claim.

• On January 6, 2010 the St. Petersburg Florida Regional Office mailed a second notice to me, this time stating they had received my claim. This second notice listed the rest of the issues from the March 24, 1999 claim.

• The issues they added are not on the September 14, 2009 claim. They were from my March 24, 1999 claim.

• They had found my initial claim from March 24, 1999.

• Larynx Operation is listed on the initial March 24, 1999 claim and on the September 14, 2011 claim.

• The RATING DECISION of July 29, 2011 backdated all awards (0% and up) to the date I submitted my initial claim (March 24, 1999).

• The July 29, 2011 Rating Decision deferred three issues: Residual of Larynx Operation, Psoriasis Elbows, and Chronic Headaches.

• The above three deferred issues are claimed on my initial claim of March 24, 1999. Residual of Larynx Operation is also on my September 14, 2009 claim.

• The May 9, 2013 Rating Decision awarded 0% for Chronic Headaches backdated to March 24, 1999. The initial date of my claim.

• A deferred issue on the July 29, 2011 rating decision.

• The May 9, 2013 Rating Decision awarded 0% for Psoriasis, Elbows backdated to March 24, 1999. The initial date of my claim.

• A deferred issue on the July 29, 2011 rating decision.

• The May 9, 2013 Rating Decision awarded 10% for Residual of Larynx Operation backdated to September 14, 2009 (A deferred issue on the July 29, 2011 rating decision).

• Larynx Operation is listed on that initial March 24, 1999 claim and on the September 14, 2011 claim.

• The 10% award is given a later effective date (September 14, 2009) than the 0% awards are given (not the date of the initial claim for Larynx Operation).

• The claim for Larynx Operation had never been adjudicated, not until the May 9, 2013 decision.

• The award should be backdated to the date of the initial claim for Larynx Operation, March 24, 1999.

From the outline above, can anyone advise as to whether or not I have a case for appeal.

What exactly is stated in the 2013 Rating Decision, in the Reasons and Bases Section ?

Scan and post it if you can without personal info such as name, address, etc. . . .

I'm moving your post to the Claims / Benefits forum.

[broncovet]

Based on your posts, I think you should likely appeal. File a NOD disputing the effective date, and any percentages or sc you dispute.

The effective date will be the later of the "facts found" or the date of claim. If the doc said your condition did not begin until later, then it may require an IMO doc to state that you had the malady much earlier. You would need to review your medical records to see this.

[Berta]

You stated:

"The May 9, 2013 Rating Decision awarded 10% for Residual of Larynx Operation backdated to September 14, 2009 (A deferred issue on the July 29, 2011 rating decision)."

"The claim for Larynx Operation had never been adjudicated, not until the May 9, 2013 decision.

• The award should be backdated to the date of the initial claim for Larynx Operation, March 24, 1999."

I agree that this award should go back to March 1999, at least for a 10% rating, unless the medical evidence they had indicated a higher residual rating,from1999 to Sept 2009.

You need to file a NOD as others suggested.

However ,if this were my claim, I would file a request or the VA to call a clear and unmistakable error on itself, due to an evidentary violation of 38 CFR 4.6.

The VA obviously has evidence of the larynx operation in 1999 and

the claim was filed in 1999.

I dont know where they came up with the Sept 2009 date, since this was an open claim for 14 years.

This type of request for VA to CUE itself does NOT stop the NOD deadline.

However it can bring about a faster resolve.

All I have is my experience using this tactic last year on my initial AO IHD claim denial.

After having had multiple issues at VA for over 16 years, which all were awarded (yet every award letter I got was wrong) I fought aggressively to get them to CUE their absurd initial AO IHD denial right away. I was very ticked off.

Within one month VA reversed it's denial to my proper AO IHD award and sent the cash.

In an additional award last year, they erred again. This link has my template for how I handled this subsequent CUE request:

The regulation ,38 CFR 4.6 ,is in that link .

38 CFR 4.6 is well established basic VA case law and has never been changed or amended, and if they violate the evidentary requirements of this regulation, the VA has committed a CUE.

You stated:

“I dont know where they came up with the Sept 2009 date, since this was an open claim for 14 years. “

Did the decision state any possible rationale they used for that date?

Obviously,if you were deemed 10% in 2013 via a deferred rating, due to larynx operation residuals from a 1999 operation, it would be a Medical Miracle, in my opinion, that the operation left you with No residuals for almost ten years, until 2009....possible???maybe????

But I sure dont thnk so.

“The May 9, 2013 Rating Decision awarded 10% for Residual of Larynx Operation backdated to September 14, 2009 (A deferred issue on the July 29, 2011 rating decision). “

This error could be as simple as a typo on the date but a request that they CUE themselves does get their attention much faster than a NOD would, although this type of request does NOT stop the year NOD clock.

If you use this approach and VA gave you no legitimate medical rationale for using the Sept 2009 date,

make sure you state the exact statement you are requesting them to CUE themselves on and cite 38 CFR 4.6 with the entire brief regulation.

Did the Larynx operation leave a ratable scar?

Are you sure the 10% larynx rating is correct or should it be higher?

Scars and larynx issues are rated as within the VA Schedule of Ratings here at hadit.

Or you can file the NOD now and tell them why they are wrong.

VA sits on NODs these days for months and months and I believe ased on your posts here that this could be fixed sooner than later.

I always put Attention to on all of my submissions to VA, and then follow that by using the Initials in the numeric and alphabetic code to the upper right of the VA letter I am responding to

The alphabet letters indicate the rater's name who prepared the decision.

There is no regulation or published method for using this approach.

I tried it about 4 times so far with results.

I will not hesitate to use it again, if I get more bogus VA decisions that hold legal errors and that are detrimental to me.

I sure regret I didn't use this tactic for the initial denials on my 2003 DMII claim.

That claim took almost 9 years to award.

Their initial RO denial of it contained at least 3 CUEs, the most prominent one being violation of 38 CFR 4.6 as they completely failed to consider 3 IMOs I had sent to the VARO in support of that claim.

The BVA read the IM0s and awarded.

Edited June 4, 2013 by Berta

[Berta]

Just to add:

38 CFR 4.6 is a powerful regulation.

I also used a citation from M21-1MR re: 38 CFR 4.6, for my ' Go CUE themselves' claims:

“I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

Every element ( every single piece of evidence the VA has that would affect the probative value ( probative value, legal definition: evidence which is sufficiently useful to prove something important in a trial ) or in our case, in a VA claim.

“Thoroughly and conscientiously studied “.... means the VA had to acknowledge the evidence and read it....to make an equitable decision......

yeah right...I fully believe that this regulation is broken far more than we know by the VA, allowing many claimants to think their only recourse is to file a NOD,without questioning the error via CUE request, and then they become part of the long wait for an equitable decision .

If you send in evidence that is probative to your claim and the VA denies without listing the evidence in the Evidence list or considering at at all n the decision narrative, that is a CUE on VA's part.

Ironically,in my experience, they always failed to consider the strongest and most probative evidence I had.