Need Help Please

[hurryupnwait]

In my remand letter from the BVA of June 24 2005, it states the folowing;

"The board notes that the RO originally denied service connection for residuals of a back disability by way of a rating decision dated in April 1973. In July 1973, the RO continued the denial based on the veteran s failure to appear for a VA examination (I do not recall this). In August 1973, the veteran responded to that notice and reported that he was willing to appear for an examination, which was then conducted in October 1973. In November 1973, the RO denied service connection for a back disability that was congenital or developmental in origin, and determined that the episode of back pain while on active duty for training was not aggravated beyond the natural progression. The claims folder does not reflect that the veteran was notified of this determination."

"As a result, there is a question as to whether the initial claim was abandoned, and the board will therefore, consider the claim on a de novo basis. See 38 CFR 3.158(a) (2004).

Would this mean that my claim may have an effective date of 1973?

What does de novo basis mean?

I presently have a favorable VA C&P exam that states the following;

"In regard to to the function and pain complaints today, we would have to make the statement that it is as likely as not that the military conditions worsened his current pathology as stated in this examination. The injuries that did occur in the service did aggravate this old, original condition."

I understand that the AMC is thinking about rescheduling me for another exam.

Is the AMC obligated to follow the Board s remand. Recently, the ratings board sent my claim back to the pre determination area because now the ratings person is asking for medical records from a civilian doctor that is deceased and the records were destroyed years ago. This doctor was not mentioned in the remand. Probably because I sent a letter to the Board in 2003 stating that I had contacted the doctor's heirs and they told me that the medical records were destroyed.

I saw this doctor for my back from 1973 to 1986.

The next best thing I guess I could do is get a letter from my sister and a friend stating that I was seen by this doctor during those years.

The AMC should now have a copy of the letter from my doctor's executor of the estate that the doctor died in 1986 and that his medical records were destroyed about 12 years ago.

This claim was reopened in Nov, 2001 and is quite large.

Any ideas on what to do next?

[Pete53]

DeNovo means it is completely open and it looks to me like if awarded the effective date would go back to 1973.

Good Luck

[mobie16r]

§ 3.158 Abandoned claims.

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(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.

DE NOVO mean Start fresh and in your case i thank that is when you reopen claim in 2001.Good luck on getting your claim granted

mobie

Edited May 2, 2007 by mobie16r (see edit history)

[hurryupnwait]

§ 3.158 Abandoned claims.

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(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.

DE NOVO mean Start fresh and in your case i thank that is when you reopen claim in 2001.Good luck on getting your claim granted

mobie

The way I read the Board statement is that they question that this was an abandoned claim. Am I missing something? What is in 3.652?

[mobie16r]

§ 3.652 Periodic certification of continued eligibility.

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Except as otherwise provided:

(a) Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. The beneficiary will be advised at the time of the request that the certification must be furnished within 60 days from the date of the request therefor and that failure to do so will result in the reduction or termination of benefits.

(1) If the certification is not received within 60 days from the date of the request, the eligibility factor(s) for which certification was requested will be considered to have ceased to exist as of the end of the month in which it was last shown by the evidence of record to have existed. For purposes of this paragraph, the effective date of reduction or termination of benefits will be in accordance with §§3.500 through 3.504 as in effect on the date the eligibility factor(s) is considered to have ceased to exist. The claimant will be advised of the proposed reduction or termination of benefits and the date the proposed action will be effective. An additional 60 days from the date of notice of the proposed action will be provided for the claimant to respond.

(2) If the certification is not received within the additional 60 day period, the proposed reduction or termination of benefits will be put into effect.

When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found.

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

mobie

Edited May 2, 2007 by mobie16r (see edit history)

[allan]

>Is the AMC obligated to follow the Board s remand. Recently, the ratings board sent my claim back to the pre determination area because now the ratings person is asking for medical records from a civilian doctor that is deceased and the records were destroyed years ago. This doctor was not mentioned in the remand. Probably because I sent a letter to the Board in 2003 stating that I had contacted the doctor's heirs and they told me that the medical records were destroyed.

hurryupnwait,

It's the old, delay the claim ploy.

Send in a signed statement in regards to the issue.

State that the Dr is deceased & the records have been destroyed. Fax & send a hard copy to the Appeals Center, your SO & the BVA.

You may also send in a request to have your claim reviewed by the the BVA, instead of a review by the Appeals Center, or the VARO they pass it off to.

Sending for decades old records that have likely been destroyed, does nothing but delay the claim from finalizing for at least a yr or maybe two before it's in someones hands for review again.

A claim will get processed, denied or delayed.

If a claim is not currently being reviewed, it's collecting dust while you wait.

This is how my claim has been on remands from the BVA, for nearly a decade.