Unadjudicated Claim From 1973

[hurryupnwait]

How will the VA handle an unadjudicated claim from 1973?

It is possible that my claim from 1973 is still open.

After filing an NOD in June 1973, they sent me for a C&P exam in Oct, 1973, then I never received a decision letter after that.

Any ideas

[carlie]

IF a Decision was never made it would continue be a pending claim as it is still unadjudicated.

Also study the abandoned claim rule to be sure that doesn't pertain to your claim.

Hope this helps a vet.

carlie

§ 3.160 Status of claims.

The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.

(a) Informal claim. See §3.155.

(b) Original claim. An initial formal application on a form prescribed by the Secretary. (See §§3.151, 3.152).

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

(e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.

(Authority: 38 U.S.C. 501)

(f) Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.

[27 FR 11887, Dec. 1, 1962, as amended at 31 FR 12056, Sept. 15, 1966; 55 FR 20148, May 15, 1990; 58 FR 32445, June 10, 1993]

§ 3.158 Abandoned claims.

(a) General. Except as provided in §3.652 of this part, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 based on such evidence shall commence not earlier than the date of filing the new claim.

(Authority: 38 U.S.C. 501)

(b) Department of Veterans Affairs examinations. Where the veteran fails without adequate reason to respond to an order to report for Department of Veterans Affairs examination within 1 year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned.

© Disappearance. Where payments of pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 have not been made or have been discontinued because a payee's present whereabouts is unknown, payments will be resumed effective the day following the date of last payment if entitlement is otherwise established, upon receipt of a valid current address.

Cross References:

Periodic certification of continued eligibility. See §3.652. Failure to report for VA examination. See §3.655. Disappearance of veteran. See §3.656.

[27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52 FR 43063, Nov. 9, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002]

[hurryupnwait]

IF a Decision was never made it would continue be a pending claim as it is still unadjudicated.

Also study the abandoned claim rule to be sure that doesn't pertain to your claim.

Hope this helps a vet.

carlie

On May 18th, 1973 I sent the VARO the following, and a letter asking for a review.

The evidence I sent them was a letter from my CO explaining the how, what, where, and when of the injury. He was sending the letter to an Air Force Commander requesting medical care for me.

I also sent them my doctor's letter with his diagnosis. This is the same diagnosis that I was finally service connected for in 2007.

They must have accepted this as an NOD or a reconsideration, because they sent me to a second C&P exam. Then nothing.

§ 3.158 Abandoned claims.

(a) General. Except as provided in §3.652 of this part, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 based on such evidence shall commence not earlier than the date of filing the new claim.

Happy Trails

Paul

Edited October 2, 2008 by hurryupnwait

[carlie]

Paul,

Out of curosity is the evidence VA used to grant SC in 2007

cumulative evidence ??

The same evidence they had in 1973?

carlie

[hurryupnwait]

Paul,

Out of curosity is the evidence VA used to grant SC in 2007

cumulative evidence ??

The same evidence they had in 1973?

carlie

The evidence from 1973 was in the cfile when the 2007 decision was rendered.

Is this what you mean or do you mean if it specifically referred to in the 2007 decision.

[carlie]

Paul,

Here's an example of what I think Cumulative Evidence would be.

Active Duty SMR:

TMC - # 2

10 Feb 1970

History - XXX fell down flight of stairs 30 minutes ago.

Subjective (S) - XXX states now has headache, neck and shoulder pain.

Objective (O) - XXX has abrasions on left side of face and left shoulder,

14 mm contusion on left side of forehead.

Assessment (A) - XXX has contusion with headache due to muscle tension.

no skull fracture on examination. Pain on palpation of right trapezius.

Plan (P) - R-shoulder X-ray. Rx Robaxin for muscle tension to relieve headache.

Service Member gets Honorable Discharge 20 June 1975

Now as a veteran files claim for headaches 15 Aug 1975

Never hears anything from VA on the claim --- and the claim just sits around somewhere

until -

20 Jan 1980

Vet sends a letter asking - hey VA people, I filed a claim to service connect my headaches on 15 Aug 1975, just two months after my discharge - what's going on - you have never replied to my claim.

VARO C&P Examination

20 March 1980

C&P examiner states - veteran has headaches about 3X per month.

Veteran's outpatient records from private (or VA) primary care provider show veteran

has been RX'd Robaxin muscle relaxed to relieve muscle tension headaches

over 20 times since discharge.

After reviewing SMR's It is my medical opinion that the veterans headaches are

at least as likely as not due to muscle tension from active duty injury on 10 Feb 1970

20 July 1980

Varo grants headaches under Diagnostic Code (DC) 8045 at 10 % SC and provides

effective date of 20 Jan 1980, date of last letter from veteran.

25 July 1980

Veteran now NOD's the effective date and request an effective date of 21 June 1975,

1) An original claim filed within one year of discharge - effective date should be day

following separation.

2) Original claim remained unadjudicated from filing date of 15 Aug 1975

3) Service connection for headaches was granted from C&P examination 20 March 1980

headaches due to muscle tension.

(THIS IS WHAT I SEE AS CUMULATIVE EVIDENCE).

Hope this helps a vet.

If anyone else sees this example of Cumulative Evidence as incorrect please chime in.

carlie

[jbasser]

Cumulative evidence is something that repeats or is the exact same as evidence in the file and is not new and material.

For example, Doc 1 states that Vet has had headaches from 1975.

Doc 2 states the same thing.

That is the cumulative part.

New and material is evidence that has not been considered or is new, C and P exam, or an MD opinion with an etiology for a condition.