Help On Timeframe

[hayley3]

Last year I received a notice from the VA on Aug 14, 2006 that said I filed a notice of disagreement with the BVA. It said I had 60 days to file the appeal but I didn't get it til that time had passed and I really had a lot of health issues, like memory loss and what not.

It also said I had a year to submit additional evidence in support of my claim. I did submit some evidence and I barely got it in but I got it in on Aug 14, 2007 and that is what they are now saying is when my claim starts.

I just received a notice that my claim expired 3 years ago and it is now valid as of Aug 14, 2007 and not when I started it in 2003.

I am not well. I have thyroid trouble and memory loss. How could it have expired 3 yrs ago when I just got a letter dated 2006? I filed the claim, they denied it in 2004, but I sent in a notice of disagreement and they said it would go to the BVA. Can they go back to the original date like that?

Please help!

Susie

[Berta]

Susie- I see you have 50% now-

do your SC conditions make you unable to work?

If so- that will take medical evidence- a statement from a doctor that- due to your service connected disabilities - you are unemployable- and also it takes filing the 21-8940 TDIU form out and sending it to the VA.

If SSA has awarded you for total disability due to the same SC conditions -that too is good evidence of unemployability and vice versa-

a VA 100% award can be used as evidence for SSA disability benefits.

Also VA must consider whether side affects of your SC meds render you unable to work and also-if VA Voc Rehab ever turned you down-due to your SC conditions- that too is excellent evidence of TDIU.

[Berta]

forgot to add- TDIU -Total Disability due to Individual Unemployability is paid at the 100% comp rate.

[hayley3]

My SC condition is not the cause of being unable to work, although it is related to the reason I cannot work. It's an autoimmune thing.

Susie- I see you have 50% now-

do your SC conditions make you unable to work?

If so- that will take medical evidence- a statement from a doctor that- due to your service connected disabilities - you are unemployable- and also it takes filing the 21-8940 TDIU form out and sending it to the VA.

If SSA has awarded you for total disability due to the same SC conditions -that too is good evidence of unemployability and vice versa-

a VA 100% award can be used as evidence for SSA disability benefits.

Also VA must consider whether side affects of your SC meds render you unable to work and also-if VA Voc Rehab ever turned you down-due to your SC conditions- that too is excellent evidence of TDIU.

[hayley3]

Would it help if I got a lawyer? Should I get a lawyer?

If I got it into the VA on Aug 14, 2007, am I one day late?

My SC condition is not the cause of being unable to work, although it is related to the reason I cannot work. It's an autoimmune thing.

[Berta]

Unfortunately the new Lawyers for Vets regulations only involve claims with NODS filed after June 21, 2007.

You certainly should try to get a good vet rep to sort this out-

In the VCAA letter the VA sent you -they were to specifically state and underline this important statement- exactly what evidence they needed for you to succeed on the claim.

If you have been able to supply that evidence aong with the returned VCAA response form- I assume they are working on the claim-but as a re-opened claim-

a good vet rep could determine if your EED (earliest effective date) should be this recent date VA gave you-or back when you first filed- and they might even see a basis for a CUE claim-that could possibly recover the best EED date- that is a long shot but they would advise best there-

They (a good Vet rep) would need to review everything you have and what the VA sent to you-and see a copy of your c file too- when you get that-

Also if there is a documented medical reason (or if you could get a doctor's statement on this) that you could not file the appeal sooner due to to medical reasons- that might be something the VA would have to consider-if the appeal was filed too late-

This case shows what I mean-

http://www.va.gov/vetapp04/files4/0431864.txt

Sometimes the VA will consider certain circumstances in equitable tolling-

In part:

"Rather, the Federal Circuit determined that a

veteran must show that the failure to timely file a

substantive appeal was the direct result of a mental illness

that rendered him incapable of "rational thought or

deliberate decision making." Citing from Meléndez-Arroyo v.

Cutler-Hammer de P.R., Co., 273 F. 3d 30, 39 (1st Cir. 2001)

(remanding for factual inquiry into whether plaintiff's

mental state warranted equitable tolling). In view of these

considerations, the Board believes that a VA examination with

opinion would be helpful to assess the veteran's mental state

during the appeal period in question (from the date of the

April 21, 2000, Statement of the Case to August 3, 2000).

See 38 U.S.C.A. § 5103A(d). "

I would sure think this would be appropriate for any vet whose disabilities -whatever type they were-had prevented him or her from getting their Appeal in on time.

This however would take medical evidence as to medical cause of failure to file as well as support from a vet rep to prepare an argument on this -searate from the actual disability claim.

(If it invoves an I-9 it would probably involve filing a Motion with the BVA)

Edited December 1, 2007 by Berta

[hayley3]

Thank you Berta!!!!

My records were just transfered to a different state, so now I'll have to figure out out to get a hold of the American Legion in Indianapolis, over 2 hrs away from me. But I definately need a better brain than mine to get thru this.

Like I said before, I have thyroid disease, and it can mimic mental illness so the internet says, but I'm one of those that would never mention having mental difficulties because of embarrassment, well except on a forum. But it's a thought.

Dang it, I didn't know that about the lawyer thing. I was counting on that as a backup.

Thanks for going to all the trouble and posting that info. It really, really helps.