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Sad Day ...............


lamontino

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I called today to the BVA, they told me that my claims where denied. I dont know how this happen and its extremely upsetting. I dont have the paperwork yet. But they must didnt look at my IMO or IME or consider anything else that was of fact. Also, I found out that they wasnt even suppose to tell me anything about it until I got the mail. It was just decided yesturday. IF anyone can help me please refer to my past topic at "The Va is trying to Hoodwink me" than you all could know what happen in my case. Thanks very much all

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  • HadIt.com Elder

Lamontino, for today sit down with a cup of tea or decaf and distract your self with a book, t.v. or hobby. Then when you get the letter, breathe, relax, then read it dryly; the response should be regular VA wording and rather nonpersonal. Then set the letter aside, do something else, then reread it and decide who you are going to discuss the issues with, VSO and/or hadit forum. What'ya think, sound ok with you? best wishes,cg

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  • HadIt.com Elder

If you disagree with the BVA decision I think that you have 60 days from date of notice to file and appeal with CVA or Court of Veterans Appeals. Looks like you will need a lawyer for this to me.

Good Luck

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  • HadIt.com Elder

lamontino,

When you receive your letter, first do as Cowgirl said, be easy on yourself.

If you can at all post for us the reasons and the why's.

Sometimes, you know, when you turn these cases over to a lawyer, we have a burden lifted off our shoulder.

If I receive a denial from the AMC, I will be most happy to turn mine over to one, for the VA has turned me into a worn out dishrag.

Always,

Josephine

Edited by Josephine
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  • HadIt.com Elder

x

x

x

Hire an attorney ASAP.

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  • HadIt.com Elder

Lamontino,

I always thought that the most important issue in your claim was continuity of symptoms established by treatment after dischatge. This is because there were no diagnoses that jumped off the page and slapped them in the face verified by xray, MRI etc. I do realize there were some indications of abnormality from the xrays. However I do not remember that those equated to criteria on the rating schedule. As a result they could take the stand that even though they discharged you it was done in a manner that did not establish that they agreed that you had a perminant disability. They would argue that they just did not want to take a chance with your back condition. The continuity of treatment after discharge would be used to rebut such an opinion and establish an ongoing disability.

It will be interesting to see what they say. My expectation is that the SOC will be written in a manner that just confuses the issues.

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Goodmorning to all,

Well, I did contact the Pro Bono Program,but they said that I need to downloading the retainer agreement. But first I need to submitt the finicial hardship as well as the notice of appeal with the U.S.C.A(those could be fax to them but the retainer has to be mail to the pro bono program).

He at the pro BOno ask "how in the heck did I know this so soon from the 26th of Sept? I told him they told my brother, I ask him to call from me to check my status. He said something about it was wrong for them to give out any information over the phone and its against BVA procedures and policys.

I dont know wheather to wait until I receive the decison from bva or just go on to the cva.They are base my claim on "reopening it" My claim for my back was allready open thru the Local regional office they grant my back claim be reopen. SO im thinking bva in that error thought that my back claim was not open. HELP!!!!!

ONce again, my chronic back pain was granted to be reopen by the VA in 2004 base on new and material evidence. So how can they(BVA) denie my back condition to be reopen now????

Than that follow of my claims as a whole, being denied. Because they are basically not reading that my back claim was already granted through my local regional office to be re-open which was secondary of my esophusitis and gasitis.

Lamontino,

I always thought that the most important issue in your claim was continuity of symptoms established by treatment after dischatge. This is because there were no diagnoses that jumped off the page and slapped them in the face verified by xray, MRI etc. I do realize there were some indications of abnormality from the xrays. However I do not remember that those equated to criteria on the rating schedule. As a result they could take the stand that even though they discharged you it was done in a manner that did not establish that they agreed that you had a perminant disability. They would argue that they just did not want to take a chance with your back condition. The continuity of treatment after discharge would be used to rebut such an opinion and establish an ongoing disability.

It will be interesting to see what they say. My expectation is that the SOC will be written in a manner that just confuses the issues.

Edited by lamontino
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I haven't been following this closely but if I am understanding you right, you heard something verbal about your BVA decision but have not gotten the actual BVA decision in writing yet?

If that's the situation, you should just WAIT to receive the written decision, read it and find out for sure what said decision was. As you know, it will be one of three things: (1) a granting of your claim, (2) a denial, (3) a remand back to VARO...or possibly a mix of these if you have more than one issue being decided. You need to see exactly what the BVA decided and why they ruled that way, not go on hearsay information now.

Besides, I don't think you can go to the CVA level BEFORE you're finished with the BVA -- you have to go up the "chain of command" as it were -- so just try to be patient and wait for the written word (which you should get shortly) and then go from there.

-- John D.

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  • HadIt.com Elder

lamontino,

He is correct. You need to wait and see what comes in the mail. Those telephone operators don't always know what they are talking about and they are not allowed to give you or anyone their decision by way of telephone.

Hang in there,

Josephine

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  • HadIt.com Elder

The dimwits at the VA phone bank once told me my claim was at the front office and I was in store for a big retro payment. Needless to say, it was untrue. Get it in writing.

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  • HadIt.com Elder

Lamontino, I agree with the responses, keep busy while you wait to receive the written decision and then proceed logically in steps (*see Cloudcrafts reply)

By the way, what type music do you listen to? I hear the Eagles have a new CD out with good old songs on it, but havent heard it yet, probably get one of my teens to "download" it for me! smile,cg

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Evening all,

Well I got the letter, basically im mad as hell. Im going to write it to my best ability. What makes me more mad is the judge is saying like i was asking for my claim for my back to be reopen. My claim was granted to be reopen by my local regional office.

The Issue(Their lawyer)

1.Whether new and material evidence has been submitted to reopen a claim for service connection for chronic strain of the lumbosacral spine of musuloligamentous origin

2.Whether a january 1987 rating decision contained clear and unmistakeable error (CUE in its failure to grant service connection for residuals of back injury

FInding of Fact

1.A claim for service connection for residuals of back injury was denied by a Jan 1987 rating action that was not appealed.

2. The evidence submitted since the january 1987 rating decision pertinent to the claim for service connection for chronic strain is either cumulative or redundant does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.

3. The jan 1986 rating action was supported by the evidence then of record, and it is not shown that either the facts or applicable staturtory and regulatory provisions existing at that time were ignored or incorrectly applied.

Conclusions of law

1. The rating decision of Janurary 1987 which denied service connection for residuals of back injury is final 38 u.s.c.a 5108, 7105 (west), 38 c.f.r 3.104, 3.156, 20.11103 (2006), 38 u.s.c. 4005©(1982) 38 c.f.r. 19.192(1986)

2.The jan 1987 rating decision denial of service connection for residual of back injury was not clearly and unmistakably erroneous and is final 38 c.f.r 3.105(a)(2006)

Reasons and bases

1. Veteran Claim Assistance Act of 2000

At the outset, the board notes that this matter has been sufficiently developed pursuant to the guidelines established in the veterans claims assistance act of 2000 38 u.s.c.a 5102 5103 5103a 5107(west 20020).WIth respect to the veterans claim based on cue in a previous rating action it had beeen held that such a claim must be based on the record and law that existed at the time of the prior adjudcation in question. Therefore a remand for application of the vcaa is not required as to this claim. Livesay v. principi 15 vet app 165 179(2001)(en banc)(vcaa not applicable to cue claim). As for the veteran claim for service connection the record reflects that the veteran has been advised of the eviendence necessary to substantiate his claim

Than it goes on to talk about an march 2004 letter that allegedly out line the evidence ne3cezssary to substatiated my claim

Than on this issue it goes on to say now check this out""while the march 2004 letter did not give any information regarding th assignment of increased ratings and/or effective dates since the board has determined that the claim will not be reopened the board finds that the appellant is not prejudiced by the failure to provied this information""

2. although the march 2004 vcaa notice letter did not specifically request that appellant provide any evidence in the appellants possession that pertained to the claim as addressed in pelegrini v. principi 18 vet app 112 (2004) as demonstrated from the foregoing communication from the RO the board evidence pertaining to his claims all the va requires is that the duty to notify information and evidence in support of their claim once this has been accomplished all due process concerns have been satisfied""

goes futher to say about va fulfill all its duty of assistant me

New and Material evidence

The record reflects that a january 1987 rating action denied service connection for residuals of back injury. The record does nto reflect that the veteran filed a timely notice of disagreement with this decision. accordingly, it became final when the vet failed to perfect his appeal of that decision within th statutory time limit. evans v. brown 9 vet app 273,285(1996)as such his claim for service conneciton for chronic starin of the lumbosacral spine of musculoligamentous origin may only be reopened if new and material evidence is submitted.

Furthermore, the effective only for claims filed on or after august 29 2001. see 38 c.f.r. 3.15(a). Here, the veteran request to reopen the claim for chronic stain origin was received in feburay 2004 thus, the currenc appeal will be decided under the revised version of 38 c.f.r 3.15(a) as is outlined in the decision below.

therefore, in this instance, although the jan 1987 decision only referred to the vet failure to report for exam as the basis for the denial of his claim the evidence of record at the time of this denial reflects that a pre-existing back disorder was not noted on the vet entrance exam in apirl of 1986 but was identiffied in the subsequent service medical records and the private treatment records dated from april 1984 to sept 1985. the board must therefore infer that the RO further determined in jan 1987 that while the presumption of soundness attached, the presumption of soundness had been rebutted, and that the evidence did not demonstrate that the vet preexisting low back disorder was aggravated as a result of his active service. thus, the board finds that new and material evidence would consist of medical evidence showing that the vet did not suffer from a pre-existing low back disorder permanently increased in severity during service.

In this regard, additionial evidence received since the jan 1987 rating action includes private medical records and reports dated from may 1980 to july 2006, the vet SSA disability reocrds, va exam records, testimony from RO hearings and a hearing before the board in july 2006, and sstatements from the vet, and his daughter and mother.

Most importantly, its includes a july 2006 private medial report from dr. stand and a june 2007 private medical report from dr. bahi. Dr stand opined that it was at least as likely as not that the vet service accident in basic traing may have resulted in the vbet present low back condition. Dr bahi conceded that the vet low back disorder preceded service and opined that the vet sustained permanetn aggravation of his pre-existing asymptomatic lumbar spondylosis, and that the alleged injury during service "did exacerbate his pre-existing condition". However, a carefule reading of both private medical opinions fails to reflect an opinion or finding that establishes a measurable permanent increase in severity of the vet pre-existing lumbar spondylosis during his period of service between may 13 1986 and june 20 198+6 temporary or intermittent flare ups of symptoms of a preexisting condition, alone do not constitue sufficient evidence for a non combat vet to show increased disability for the purposes of dterminations of service connection baded on aggravatioin under 38 u.s.c.a. 1153 unless the underlying condition as contrasted to symptoms is worsened davis v. principi, 276 f. 3d 1341, 1346-47(fed.cir.2002)hunt v. derwinski 1vet app 292 297(1991)

The testimony and statements of the vet and those of his family are also found to constitue contentions that were essentially mad and considered at the time of the jan 1987 decision and are therefore cumulative in nature moreover as laypersons the statements of the vet and his family as to a reationship between his current low back disability and service are of no probative value espiritu v. derwinski 2 vet app 492(1992)

Therefore, the board has no alternative but to conclude that the additional evidence and material received in this case as to the claim for service connection for chronic strain of the lumbosacral spine of musculoligamentous origin does not relate to an unestablished fact necessary to substantiate the claim and thus is not material it is also not material because it is essentially redundant of assertions made at the time of the previous final denial back in jan 1987 and does not raise a reasonable possibiltiy of substantiatiing the claim 38c.f.r. 3.156(a) (2006)

CUE

Basically he talks about the law that governs cue. Saying just because there is a premise cue doesnt constitues and cue

Therefore in order to determine whether the jan 1987 rating decision involved cue the board must review the evidence which was of record at the time of the jan 1987 rating decision. a determination of clear and unmistakable error must be based on the record and the law that existed at the time of the prior unappealed decision see eddy supra(citing russell 3 vet app at 314 and luallen 8 vet app at 95)

as was noted with respect to the vet new and material claim the vet eran was properly notified of the jan 1987 rating decision but did nto file a notice of disagreement with that decision within one year.thus the decision became final. it was in june 2006 when the vet raised the claim of cue the court has stated that the essence of a claim of cue is that its collateral attack on anotherwise final rating decisioni by a va regional office smith v. browon 35f 3d 1516 1527 (fed cir 1994) As such, there is a presumptionk of validity which attaches to that final deciion and when such a decision is collaterally attacked the claimant who seeks to obtain retro benenfits based on cue has much heavier burden than that placed upon a claimant who attempts to establish prospective entitlemtn to va benefits see akins v. derwinski 1 vet app 228 231 (1991)THe board finds that the vet has not met this burden

Than it goes on to say about the presumption of soundness but they claim there was note in the file that contain information that they knew about my pre service condition prior to me entering but they didnt and I have proof I didnt give them info until 2004 of the 1984 and 1985 records.

than he talks about the l2 thru L4 saying that the RO could have concluded that the tenderness at other levels was merely acute and transitory and not representative of disabiltiy for which service connection could be established and that treatment during service did not demonstrate a measurable increase in the severity of the vet pre existing low back disability in order to warrant attachment of the presumption of aggravation.

They say i only talk about disagreement as to how the evdence was wighed and evaluated by the RO in Jan 1987. THey did talk about hardly anything about my SSa just said that it doesnt appear that the ssa report tells of a increase in the severity of my back. But it does clearly on the SSA report.

I think all this is bull and hiding the facts as it laid. My IME/IMo was clear to what measurable things and list each and everyone doctors that I had seen in the past and before service and after service. THis doctor gave me a complete physical examination even before he did they results for his report. Not only that it was 3 other doctors involved whom came up with this decision and gave graphs and diagrams and such. I dont understand.

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  • In Memoriam

CAVC court was not established until 1987. It looks to me like your claim did not go to the BVA or the CAVC. I would see a lawyer for sure. I remember, reading that most of the claims before 1987 were going to have to be reworked or reconsidered as the Veterans Court changed procedures 1987. I don't know if this is true or not, but I will find out.

One of my claims is for back injury and pain. The claim went to the RO only in 1985. I was told that I had due process of law (DAV), when I did not. My claim was BVA reopened in 2005.

I have a BVA conference on the matter in OCT.

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  • HadIt.com Elder

the evidence of record at the time of this denial reflects that a pre-existing back disorder was not noted on the vet entrance exam in apirl of 1986 but was identiffied in the subsequent service medical records and the private treatment records dated from april 1984 to sept 1985. the board must therefore infer that the RO further determined in jan 1987 that while the presumption of soundness attached, the presumption of soundness had been rebutted, and that the evidence did not demonstrate that the vet preexisting low back disorder was aggravated as a result of his active service. thus, the board finds that new and material evidence would consist of medical evidence showing that the vet did not suffer from a pre-existing low back disorder permanently increased in severity during service.

What kind of pre-existing back injury did you have that you did not report upon enlistment?

Josephine

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Hello,

Well as you know I had a previous thread open T bird close that because of searching things which I do understand. BUt that thread is still open to read. In that thread I basically explained what happen. See, before I went in the service. I was having leg problems as a kid. I went to the doctor and he said it was my back that was giving me the problem. BUt I didnt have back pains.

I did get a couple of dianosis but the where asyomatic and acute and I pasted the rigor examination to get in the military. On that same report of entrance I told them that I had taken med in the past but wasnt taken any more. which was mortin for leg pain.

Nothing else was said about it. I got hurt in the military on three different occasions during basic training. WHere I was given meds for pain.and so forth., I would copy and paste what I wrote in the other thread but im thinking I would probably run into problems.

But from what im reading they are saying that I didnt respond within a year period of time to my first rating decision and didnt show for an appt for Rheum in 1987. As mention, I was homeless but I wrote the region office and contact the adovate company that was helping me. I told them, in writing that to send all mail to my mothers address. I never recevie and denial, an notice of an additional appt of nothing. In fact, the address that they sent my info to was not my address(I can prove this by the records I gotten from the national service records and my c file) and I dont think the judge seen that I had submitted a letter back in 1986 telling them of this problem as well as mention that I didnt agree with the Dr xray result.

THey tried to say as well that I missed a appt with the RHEUM doctor. BUt thats a lie because I did all examinations on that day of aug 1986 even states it in the reports. But the VA claims I missed an appt with the RHEUM Doctor. Which I did meet with that doctor already.

I think the BVA just plain dont want to pay benefits rightfully mines because of the large potential retro pay involved. But if I have to fight to the supereme court I will. It would seem as if they look over all the important documents(my file is extremely large) so I have prepared an "index of evidence" along with motions. I think im going to try this way first than if nothing else I will go to the Court of veteran appeals and hire a pro bono atty.

I just dont understand why the judge fail to see that my claim was granted by the DRO to be reopen base on new evidence back in 2004. But the judge basically look over that and revisit only the 1987 denial decision.

Courts have ruled that The holding in Hayre as explained in Tetro v. Gober, 14 Vet. App. 100 (2000) provided for review of unappealed decisions where grave procedural error had occurred so as to render the decision nonfinal. In Hayre the vitiating error was failure to assist in obtaining specifically requested service medical records and failure to provide the claimant with notice explaining the deficiency. Other examples of grave procedural error referred to in Tetro were Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (failure to provide a statement of the case after receiving a notice of disagreement); Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (failure to provide notification of denial tolls period to file a notice of disagreement); Kuo v. Derwinski, 2 Vet. App. 662, 666(1992) (failure to send statement of the case to accredited representative tolled 60 day period to respond) and Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (evidence sufficient to rebut presumption of administrative regularity for mailing of appeal notice).

Than saying that the expert Medical examination and opinion was cummalative and ruduant. Even my family sworn statements. When This doctor gave to the T a detail examination and opinion with graphs and diagrams of finding and a etilogy report all my whole life history of the problems I was having. The judge said also that it was lay evidence that was already of note. BUt I didnt have the exam until this year so how can he say that when i waiver the review of my local regional office?

The law states VA amended the regulations regarding effective dates for reopened claims based on the receipt of service department records (38 C.F.R. §§ 3.156©, 3.400(q)). See 71 Fed. Reg. 52455 (Sept. 6, 2006).The substance of the regulations, however, remains essentially the same. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156©(1) (effective October 6, 2006).

and alot more that i find in erred that was the law than and is the law now that the BVA didnt do correctly. DO anyone know if my motion to advance will still be honored upon my motion to reconsider???????

the evidence of record at the time of this denial reflects that a pre-existing back disorder was not noted on the vet entrance exam in apirl of 1986 but was identiffied in the subsequent service medical records and the private treatment records dated from april 1984 to sept 1985. the board must therefore infer that the RO further determined in jan 1987 that while the presumption of soundness attached, the presumption of soundness had been rebutted, and that the evidence did not demonstrate that the vet preexisting low back disorder was aggravated as a result of his active service. thus, the board finds that new and material evidence would consist of medical evidence showing that the vet did not suffer from a pre-existing low back disorder permanently increased in severity during service.

What kind of pre-existing back injury did you have that you did not report upon enlistment?

Josephine

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Sorry to say that unfortunately, you have a real mess here to work out.

Some of it appears to be related to the "new" evidence you submitted to reopen your case (if I am getting what you're saying because it's hard to follow you) after a year passed by and you had not appealed the earlier VARO denial decision (whether you got their notice of the decision or not) within one year's time. Plus, and as you know, unless there was a CUE involved in the original decision, after the year expires and the VARO hasn't gotten an NOD from you then one's case is closed, it's all over and the decision -- for you or against you -- is permanent...unless you have "new and material" evidence to reopen it at a future date.

So it just looks like they're going by-the-book re: the deadlines you missed.

I know you told VARO to mail things to your Mother's address because you were homeless, but for whatever reasons, the VA says THEY didn't get any responses from you in the required time period, so, by-the-book they decided and then after a year closed the claim. Maybe the VA DID send their denial, etc., to your Mother's address, but for some reason you didn't get them, so both you and VARO weren't communicating. You can't say for sure the VA did NOT send their letters out, like a SOC, telling you what they needed next if you disagree (NOD), etc. What a mess.

But what abot the evidence itself? I mean, you have these statements:

"...expert Medical examination and opinion was cummalative and ruduant."

And this one:

"I just dont understand why the judge fail to see that my claim was granted by the DRO to be reopen base on new evidence back in 2004."

Neither statement suggests the evidence was "material." I have written about this earlier that most vets overlook the "material" part in the phrase "new and material." Perhaps your evidence was "new" but not "material." Almost any evidence can be "new" (it's pretty easy to meet THAT requirement) but lots of evidence is not "material." Even doctors can write opinions that are not "material," so just because a doctor wrote something, it may not be as helpful as it should be. So evidence not being "material" all by itself would deny reopening your case. I'm not saying YOUR doctors' evidence isn't substantial enough to qualify as "material" -- I don't know, the VA decides -- but I am saying you should be sure that it is if you want to reopen your claim.

So again, if I am getting even PART of your situation right, you're considering filing a CUE case against VARO re: the original case how/shy VARO decided as it did. You also my be considering reopening the case since it (??) was closed due a year time-limit being reached.

I would suggest that you decide on filing a CUE claim OR getting the case reopened...not both, to keep things simple for now as it's quite a mess as I said. To help choose which to do, pick the one:

1. That you most easily/likely can prove.

2. That will give you the quickest results.

Hopefuly, one of these options will meet both of these suggestions.

I won't comment on all your evidence because someone else here may be able to follow it all better than I have, but as I see it so far, it wasn't "material" evidence. If it WAS, then you probably DO have a good CUE case.

Good luck,

-- John D.

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Thank you,

Yes I was thinking the same thing as far at what to do. BUt see I was thinking that my claim was already open because when I filed in 2004 for my case to be re open, it was granted by the VARO because of new evidence submitted. But see I dont know what happen when it got to the BVA. THe whole denial from the BVA is based on the 1987 alleged decision.

IN my claim file and in my personal files at home is a letter to the VA in 1986 of my homeless problem and if any information to send to me to send it to my mother address and I told them about me going back to job corps and that during the examinantion the doctors said nothing was wrong with me and I disagree with that because I felt something was wrong with my back because I constantly hurt.

GOd knows why the judge didnt see this. ANd its totally upsetting. I know alot of vets out here in the world probably going thru the same thing im going thru. But I promise that I will gain the justice if I have to presudad this all the way up the letter.

I was 17 years old, with nothing to look forward to. I had a profile of permanent L3 with no running and lifting which dramically cause me not to get any type of civil job when i got out. I went to job corps and grad with a trade but I could do it anymore or all the time so I filed for years to get SSA (which I won myself) I been getting benefits from them for abuot 4 years now. Lastly, the judge even said the SSA report was redundant and cummalive I think some one got it in for me of a higher power. :/ its sad that you try to do right all your life and the honest people get done the worst.

Sorry to say that unfortunately, you have a real mess here to work out.

Some of it appears to be related to the "new" evidence you submitted to reopen your case (if I am getting what you're saying because it's hard to follow you) after a year passed by and you had not appealed the earlier VARO denial decision (whether you got their notice of the decision or not) within one year's time. Plus, and as you know, unless there was a CUE involved in the original decision, after the year expires and the VARO hasn't gotten an NOD from you then one's case is closed, it's all over and the decision -- for you or against you -- is permanent...unless you have "new and material" evidence to reopen it at a future date.

So it just looks like they're going by-the-book re: the deadlines you missed.

I know you told VARO to mail things to your Mother's address because you were homeless, but for whatever reasons, the VA says THEY didn't get any responses from you in the required time period, so, by-the-book they decided and then after a year closed the claim. Maybe the VA DID send their denial, etc., to your Mother's address, but for some reason you didn't get them, so both you and VARO weren't communicating. You can't say for sure the VA did NOT send their letters out, like a SOC, telling you what they needed next if you disagree (NOD), etc. What a mess.

But what abot the evidence itself? I mean, you have these statements:

"...expert Medical examination and opinion was cummalative and ruduant."

And this one:

"I just dont understand why the judge fail to see that my claim was granted by the DRO to be reopen base on new evidence back in 2004."

Neither statement suggests the evidence was "material." I have written about this earlier that most vets overlook the "material" part in the phrase "new and material." Perhaps your evidence was "new" but not "material." Almost any evidence can be "new" (it's pretty easy to meet THAT requirement) but lots of evidence is not "material." Even doctors can write opinions that are not "material," so just because a doctor wrote something, it may not be as helpful as it should be. So evidence not being "material" all by itself would deny reopening your case. I'm not saying YOUR doctors' evidence isn't substantial enough to qualify as "material" -- I don't know, the VA decides -- but I am saying you should be sure that it is if you want to reopen your claim.

So again, if I am getting even PART of your situation right, you're considering filing a CUE case against VARO re: the original case how/shy VARO decided as it did. You also my be considering reopening the case since it (??) was closed due a year time-limit being reached.

I would suggest that you decide on filing a CUE claim OR getting the case reopened...not both, to keep things simple for now as it's quite a mess as I said. To help choose which to do, pick the one:

1. That you most easily/likely can prove.

2. That will give you the quickest results.

Hopefuly, one of these options will meet both of these suggestions.

I won't comment on all your evidence because someone else here may be able to follow it all better than I have, but as I see it so far, it wasn't "material" evidence. If it WAS, then you probably DO have a good CUE case.

Good luck,

-- John D.

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IM trying to hang in there :/ thanks for everyone support. I do really appreciate it.........

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I didnt have an pre existing back condition that was chronic. I had leg pain. BUt when I went to see the doctor when I was 15 he said that I had back pains. Said it was acute and go on with my everyday life. I told them in the militray entrance exam but they said nothing and let me in anyways.

the evidence of record at the time of this denial reflects that a pre-existing back disorder was not noted on the vet entrance exam in apirl of 1986 but was identiffied in the subsequent service medical records and the private treatment records dated from april 1984 to sept 1985. the board must therefore infer that the RO further determined in jan 1987 that while the presumption of soundness attached, the presumption of soundness had been rebutted, and that the evidence did not demonstrate that the vet preexisting low back disorder was aggravated as a result of his active service. thus, the board finds that new and material evidence would consist of medical evidence showing that the vet did not suffer from a pre-existing low back disorder permanently increased in severity during service.

What kind of pre-existing back injury did you have that you did not report upon enlistment?

Josephine

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  • HadIt.com Elder

lamontino,

You are saying that you had leg pains, but the doctor wrote down that you had back pain and being 15 years of age, you had no reason to question this.

When you look at and read your pre-enlistment papers where you check different illness, like mine said, " Nervousness", " been insane" and etc, did you check that you had leg pain and that the doctor wrote down that you had back pain.

I have a copy of mine and I see that I did write down that I had been to the doctor for a penicillin shot.

I checked no to the " Nervousness", " Been Insane".

I had a place to write that I had had Scarlet Fever as a child, and Measles.

Look and see what you checked and what you wrote down.

Next,

Is it written in you service medical records that you sustained a back injury and how serious the back injury was.

You should be able to argue the back injury worsened the so-called pre-existing conditon.

Always,

Josephine

(Betty)

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