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Fla Viking, you are correct, under Bell v Derwinski, the VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees , but if those documents predate a Board decision on appeal, are within VA`s control and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Rigo

Ralph, even though the VA considered your two (2) established claims as new, if you have the evidence you can file a claim back to the original date. When you receive the rating decision use that date with the example given. Hope this helps

The U.S. Court of Appeals for Veterans Claims (CAVC) recently issued two decisions (Richardson v. Nicholson, 20 Vet. App. 64 (2006); and Ingram v. Nicholson, Vet. App. No. 03-2196, (July 12, 2006)). These decisions appear to narrow the impact of Andrews but they may be trumped by Deshotel which was issued after both CAVC decision by a higher court, the Federal Circuit CLAIMS FOR RETROACTIVE BENEFITS WHERE THERE WAS A DEEMED DENIED CLAIM This type of claim presents itself when a regional office grants service connection for condition Y but the effective date established by the RO is arguably incorrect because the claim should have been considered by an earlier (non final) adjudication. Because this area of veterans` law is still in flux. advocates are advise to continue to file claims for retroactive benefits with regard to finally adjudicated claims if a regional office, in the past failed to adjudicate a claim that was reasonably before the RO, or the RO failed to provide proper procedural and appellate notice. The representative should file a CUE claim against the original decision based on the failure of the RO to consider disability Y . The representative should argue that the failure of the VA to recognize and adjudicate the claim that was ignored constitutes clear and unmistakable error (CUE). If such a claim is denied, the advocate should file a NOD to buy time in the hope that Deshotel is overturned (by a higher court or by Congress). Representatives are advised to continue to argue that because the claim was ignored and because the RO did not comply with 38 U.S.C. 5104, the claim is still pending and the effective date should be from the original date of claim. THE FOLLOWING IS SUGGESTED LANGUAGE (BOILERPLATE) FOR THID NOTICE OF DISAGREEMENT In Richarson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellants can argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated [insert date] should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. 5104. In the alternative, the appellant argues that the claim was still pending from the original date of claim when benefits were eventually granted. The veteran seeks appellate review. Hope this helps. Rigo

I dont understand why veterans mostly use the Rules and Regulations venue to deal with the GARBAGE the VA dish out and we never use the legal venue: TITLE 18. CRIMES AND CRIMINAL PROCEDURE PART 1. CRIMES CHAPTER 47 FRAUD AND FALSE STATEMENTS 18 USCS SEC. 1001 Sec. 1001. Statements or entries generally (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by the trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writings or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; Shall be fine under this title or imprisoned no more than 5 years, or both. If every veteran that receives a false/fictitious/fraudulent/conceal/cover-up statement, will charge the VA with criminal procedure, we can PROBABLY stop the abuse by the VA. Rigo

The American Legion, in consultation with the National Veterans Legal Services Program (NVLSP), is currently considering options to address the problems posed by these recent decisions, including a possible legislative remedy and/or requesting VA to amend its regulations to require specific notice with procedural and appellate rights before a claim is finally adjudicated. Such actions are necessary in order to protect the non-adversarial nature of the VA claims adjudication process. Recent decisions by the United States Court of Appeals for the Federal Circuit in Deshotel v Nicholson (2006) and Andrews v Nicholson (2005) have the potential to turn the current non-adversarial Department of Veterans Affairs (VA) claims adjudication process on its head as these two decisions could result in VA denying claims without making a specific decision and without providing procedural and appellate rights

Berta, the CUE claim that you presented is excellent, I think, the VA doesn`t want to deal with it. I dont understand how the VA can get away with so much garbage. What they did to your claim and the reasons given to explain their actions "I did not understand the medical evidence/terminology" that was the DRO`s explanation for the denial. What a waste of time. Did you know if she got fired? I hope she was put to rest. Berta, they dont know you are stronger, wiser, and you know how to kick assss. Rigo

Dear Berta The VA has never acknowledge the receipt of the December 2004 CUE claim. In Feb 2005 receive a letter stating that they were working on my EED for my Post Traumatic Stress Disorder (PTSD) and they needed more evidence, the VA never stated that this issue of EED was part of the CUE claim presented in Dec 04 In the same letter under important information the VA stated: "Your request for a rating of individual unemployability is a moot issue and no further action will be taken on this since you are already rated 100 percent service connected veteran. An unemployability rating would increase a veteran that is not 100 percent service connected to the identical 100 percent monetary monthly benefit that you are now in receipt of. Berta, the VA conceded the issue of TDIU, but never mention that was a part of the CUE claim of Dec 04 The other thing I found out is that the VA never got my SSI information from Social Security and they pretended to have this info and use it as part of the evidence to denied several of my claims. Requested my c-file and only one of the rating decision stated: 9411 Post-Traumatic Stress Disoder with Depression and Anxiety Attacks [Personal Trauma PTSD/Sexual Assault/Harassment] Service Connected, Vietnam Era, Incurred 100% 7805 Laceration Scars Both Wrists Service Connected Vietnam Era, Incurred 0% I never Knew the VA had recognized what I went through in service, at the same time hid this information from me, probably because I`m requesting aid and attendance. Who nows Thank you Berta for your wisdom, kindness and prompt responce. Rigo

Hi everyone, its being a long time, came accross the decision Deshotel v Nicholson (What a piece of work by the VA against veterans claims). Sorry if this was posted before. This decision has the potential to turn the current non-adversarial Department of Vetrans Affairs (VA) claims adjudication process on its head as these two decisions could result in VA denying claims without making a specific decision and without providing procedural and appellate rights. The Federal Circuit`s decisions in Deshotel and Andrews are specially harmful to veterans and their advocates because, until these recent decisions, veterans and their advocates (based on the back practices of the VA) did not know they had to appeal the failure of the VA to act on the specific and inferred claims. Now, as a result of Deshotel, representatives may have to file notices of disagreement (NODs) with many VA adjudications to protect the rights of the people they represent. Also claimants would have every right , under the Freedom of Information Act (FOIA), to request copy of their claims file so they could review the record for inferred claims. This, of course, would dramatically slow the VA adjudication process. The American Legion, in consultation with the National Veterans Legal Services Program (NVLSP), is currently considering options to address the problems posed by these recent decisions, including a possible legislative remedy and/or requesting VA to amend its regulations to require specific notice with procedural and appellate rights before a claim is finally adjudicated. Such action are necessary in order to protect the non-adversarial nature of the VA claims adjudication process. In the meantime, we offer the following guidance: CLAIMS THAT HAVE NOT BEEN FINALLY ADJUDICATED Whenever a claim is adjudicated by a regional office, the representative should consider filing a NOD with the "failure of the regional office to adjudicate all specific and inferred claims." The representative should also consider asking for a copy of the claim files if the claims file has not yet been reviewed. Representatives are advised to err on the side of caution. File an NOD and ask for a copy of the claims file where you are not certain that all claims have been adjudicated and that notice has been provided. THE FOLLOWING IS SUGGESTED LANGUAGE (BOILERPLATE) FOR THIS NOTICE OF DISAGREEMENT I disagree with all issues resolved or ignored by the decision dated [insert date of the notice letter] and wish appellate review. Recent Federal Circuit decisions hold that if a veteran files more than one claim with the RO at the same time, and the RO`s decision acts (favorably/unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal begins to run. Therefore, I file this notice of disagreement to protect my rights against the failure of the VA to adjudicate all my claims and the failure of the VA to notify me under 38 U.S.C. 5104. Berta the VA totally has ignored the excellent CUE claim you prepared in 2004, still waiting for a rating decision.

Oct 24 2006, 10:06 AM' post=30044] Hi each and everyone Cherie33, found this letter that pertain to your case and you can use to respond to the rating reduction. "VA regulations impose a duty on the VA to make an explicit finding that the preponderance of evidence shows that there has been improvement in any disability rating that the VA proposed to reduce. Specifically, 38 C.F.R. 4.1 (2006) states that "it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. 4.2 (2006) establishes that it is the responsabillity of the rating specialist to interpret reports of examination in light of the whole recorder history, recoinciling the various reports into a consistent picture so that the current rating may accurately reflect the element of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran`s disability. Furthermore, 38 C.F.R. 4.13 (2006) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms." Hope this helps Rigo In addition to these VA regulations, Manual M21-IMR, Part III, subpart iv, 8.D.12(:) requires the VA to make findings that the evidence demonstrate improvement before a rating reduction is made. Specifically, it states the VA must: outline the time period in which application of 38 C.F.R. 3.344 is based cite evidence of sustained improvement after one review examination, or a preponderance of evidence showing sustained improvement based on more than one examination and explain why it is reasonably certain that improvement will be maintained under the ordinary conditions of life Thus, Manual M21-I also requires a finding of improvement before a reduction is made in an ongoing disability rating. Therefore, the VA may not lawfully reduce a disability rating unless it addresses whether the condition has actually improve since the time it was either granted or continued.

The VA instead of rating my PTSD, used the diagnosis of Personality disorder to deny my claim. The VA denied my claim several times using this diagnosis of Personality disorder until I submited a medical study that stated that personality disorder was so intertwine with PTSD that it was almost imposible to separate them. After that, they continue denying my claim for other reasons. Personality disorder could never be considered service-connected because, it has his onset in adolescence and early adulthood. Hope this helps

In the Veterans Benefits Manual found the following: Depression: Diabetics have a greater risk for depression, especially when combined with alcohol or drug use, the side effects of medications, or thyroid problems. See American Diabetes Association, Depression, http://www.diabetes.org/type-2-diabetes/depression.jsp

The diagnoses of scleroderma in the claim of July 22, 2005 for the same signs and symptoms that the veteran suffered in 1961, the diagnoses of scleroderma in 2005 made the rating decision of 1961 also service connected.

undefined I think, that if you had a claim for service connection for scleroderma in 1961, and now VA grants a 10 percent for the same, you probably had a link all along for service connection for scleroderma. You probably could go back to 1961 and get retroactive pay. Make sure that in your NOD you request retroactive pay back to 1961, also request for and increase do to your thickening scars of back of head and neck, causing increased headaches and limiting head motion. If you are taking meds you should mention the side effects. Hope this help.