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

[lamontino]

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

[Stretch]

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.

[Josephine]

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

[lamontino]

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

[cloudcroft]

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.

[lamontino]

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.

[lamontino]

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