Re-open or Start new claim?

[Beachy]

Hello all,

I was denied a claim in 2009 (9 years ago), the claim was for an eye disease (Retinitis Pigmentosa). I have met and read about other veterans with RP who have had their claims approved. Mine was denied based on evidence of symptoms while in service. My vision is progressively getting worse, I am now legally blind based on my peripheral vision. I have looked through my C-file and there is no documentation of a field vision test on entry or exit of the Air Force.

I contacted a local lawyer who works with VA claims. I was told I should start a new claim because of the time period since denial. Is this even possible? I thought I would have to re-open my initial case with new evidence? BTW, the only new evidence I could show is the worsening of my vision and the fact that I was never given a visual field test to check my peripheral fields while in service.

Any advice is much appreciated.

[broncovet]

As to the question of "reopening" due to new evidence, the answer depends upon whether or not you need money.  

If you are independently wealthy, or recently won 50 million lottery, then start a new claim.  However, if you need money, and you can reopen due to new and material evidence, 38 CFR 3.156  C (new service records), then you can get an much earlier effective date, and more retro.  

You posted that it was denied "based on evidence of symptoms in service".  

Its incorrect that you need "evidence of symptoms in service"  This is what you DO need:

1.  Current diagnosis.

2.  In service "event" or aggravation.  (notice it does not say "evidence of symptoms in service", because symptoms can occur later.  One example:  hearing loss.  If you were exposed to very loud noises, you may NOT have "symptoms" of hearing loss for years or even decades later.  

3.  A nexus or medical statement from a doctor who stated your Retinitis Pigmentosa is "at least as likely as not due to an event in military service.  

[Beachy]

Thanks for the response BroncoVet. So, if I can get a Dr to make that statement;

"at least as likely as not due to an event in military service.  

 

• is that enough to count as new evidence?

[pwrslm]

To be safe, make sure the base etiology linking a condition in service with you current condition is in your nexus letter. I got a copy of the MD's CV as well, to prove he is an authority on the issue. CV is the same as a resume. The language preferred would be like "I have reviewed current medical records and service treatment records of Beachy. It is well established in current medical literature that the (xx condition) ln Beachy's service records is known to develop or progress over time into the (current condition)."

Get the date of the treatment in the service treatment records and have MD refer to that incident if you can.

 

Nexus language will make or bread a claim.

[broncovet]

Beachy..

    Yes, the nexus statement you mentioned is New evidence.  It would also be "material" if that evidence completes your Caluza Triangle I outlined already.  It would be a "difference maker" provided you had the other 2 Caluza elements.  

    There are 2 types of evidence for VA:

1.  New SERVICE RECORDS.  38 CFR 3.156 C.  This always results in an earlier effective date.  See 3.156c.  

2.  New evidence (that is not service records, that is, it happened after your got out of service).  38 CFR 3.156B (pending claim).  If your claim was "pending" (either not yet decided, or in some stage of appeals, including the appeal period if you have not yet filed an appeal)  

    Either of the above, (new service records or, if you submit new evidence for a pending claim) will net you an earlier effective date.  However, if you submit new evidence which is NOT service records and the claim is NOT pending, then your effective date will be the date you submitted new evidence.  

[63Charlie]

I suggest that you could save yourself some stress and contact a law firm who has a track record of winning an appeal involving this very condition.

Check out their website, and verify their success at the CAVC.

Chisholm, Chisholm, & Kilpatrick.

 

 

 

Edited January 30, 2018 by 63Charlie

[Gastone]

Beach, you've jerked around 9 years since the Denial. At Ease, regarding a VA Lawyer or trying to re-open your Denied and Final Decision from 09. Why exactly do you believe your current Eye Condition should be rated as a Direct Service Connected issue? Your New Evidence supporting Inservice treatment is?

What supportive SMR's have you obtained that would render a different Decision than that of 2009? You have tried the Direct Service Connection and were Denied. How about posting a redacted copy of that Denial.

 

When were you originally DX'd (Diagnosed by Eye Specialist) with your current Eye Condition? Was it within 12 months of your Discharge Date? Without SMR Evidence or a Record of a DX or treatment during the 12 months after discharge, a Direct SC Award is "more likely than not" hopeless.