Jump to content

Ask Your VA Claims Questions | Read Current Posts 
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules 

  • tbirds-va-claims-struggle (1).png

  • Donate Now and Keep Us Helping You

     

  • 0

Cue?

Rate this question


hurryupnwait

Question

This is the first rough draft of a cue letter. Does any one know of further regs or court cases pertaining to no notice of determination sent to veteran.

Cue

1. The VA did not send me a notice of a decision or of my appellate rights after my October 11, 1973, Veterans Affairs, Compensation and Pension exam. I believe this claim from January 1973 is still open because I never received a decision that I could file a Notice of Disagreement. I have a complete copy of my claims file and there is no notice of determination in there. In January, 2008, I was granted service connection for this same back disability, the effective date was November, 2001, I disagree since this claim was never closed properly, it should be January 1973.

In the remand letter from Board of Veterans Appeals it states the following;

"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. 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."

Also, "While it is possible that the RO did not notify the veteran of the November 1973 rating determination, the RO did inform him in April 1973 that his claim had been denied and how he could initiate an appeal. He did not file an appeal at that time and did not pursue a claim for service connection until late 2001."

Also, this court case supports the above.

CLAIM STILL OPEN IF PROPER NOTICE OF DECISION NOT SENT TO VETERAN

§ A veteran’s claim was denied in 1969. The VA avers that a notice of decision was not sent to the veteran. In 1982, the veteran sought to reopen his claim. A September 1982 RO decision found the claim had been previously denied. The VA sent a letter only advising the veteran that his claim had previously been denied in 1969. The veteran did not appeal the decision. In 1998 the veteran, through counsel, indicated that he had never been notified of the 1969 denial and requested a formal decision on that claim. The VA’s 1998 response acknowledged failure to notify the veteran of the 1969 decision but found that the 1982 letter informing the veteran that his 1969 claim had been denied finalized the issue and that his appeal rights had expired.

In 1998 the veteran appealed to the Board. The Board denied the veteran’s claim concluding that the back condition had been denied in 1969, that the September 1982 RO decision confirmed and continued the 1969 decision denying the claim and that the notice of the 1982 decision notified the veteran of his continued denial of service connection and included appellate rights information.

On appeal, the Court found the 1982 notice inadequate because it did not provide a reason for the denial in 1969 as required at 38 C.F.R. § 3.103. Ruffin v. Principi, 16 Vet.App. 12, 15 (2002).

Any input appreciated

Happy Trails

Paul

When I count my blessings I count my family and friends twice.

If you don't know where you are going, any road will get you there.

Well done is better than well said.

Link to comment
Share on other sites

  • Answers 10
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

Recommended Posts

What I am having trouble understanding:

1. They denied your claim in April

2. They contiued the denial in July because of failure to appear at exam

3. You contacted the in August and said you would report to the exam

4. You went to exam in October

5. The denied again in November but did not notify you. (or there is no evidence they did.)

QUESTIONS:

IF they denied your case in April - what caused them to continue the denial in July for failure to appear at exam?

It doesn't make sense that they would deny you - and then send you to an exam -UNLESS you appealed.

No formal appeal was required yet - but what caused them to continue the denial

It looks like the Board is saying that you weren't notified in November - BUT since you didn't appeal the April decision after being told that you could - the November thing doesn't matter.

Welllll YESSSSSSSS - It DOES - But what I think would HELP the case is to address THAT point - about them saying there is NO evidence you were notified in November _ BUTTTTTTTTTTTT you were notified in April and informed of your appeal rights and did not appeal.

Then why in the heck did they continue the appeal in June??? Why were they sending you for an Exam --if they had ALREADY denied you in a final decision.

THAT is the point that makes your case OPEN - Don't let them get by with that "well he didn't appeal the april decision" stuff to try to say you had your opportunity to appeal and didn't take it..

So what happened between the April Decision and the June decision...

Free

This is the first rough draft of a cue letter. Does any one know of further regs or court cases pertaining to no notice of determination sent to veteran.

Cue

1. The VA did not send me a notice of a decision or of my appellate rights after my October 11, 1973, Veterans Affairs, Compensation and Pension exam. I believe this claim from January 1973 is still open because I never received a decision that I could file a Notice of Disagreement. I have a complete copy of my claims file and there is no notice of determination in there. In January, 2008, I was granted service connection for this same back disability, the effective date was November, 2001, I disagree since this claim was never closed properly, it should be January 1973.

In the remand letter from Board of Veterans Appeals it states the following;

"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. 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."

Also, "While it is possible that the RO did not notify the veteran of the November 1973 rating determination, the RO did inform him in April 1973 that his claim had been denied and how he could initiate an appeal. He did not file an appeal at that time and did not pursue a claim for service connection until late 2001."

Also, this court case supports the above.

CLAIM STILL OPEN IF PROPER NOTICE OF DECISION NOT SENT TO VETERAN

§ A veteran’s claim was denied in 1969. The VA avers that a notice of decision was not sent to the veteran. In 1982, the veteran sought to reopen his claim. A September 1982 RO decision found the claim had been previously denied. The VA sent a letter only advising the veteran that his claim had previously been denied in 1969. The veteran did not appeal the decision. In 1998 the veteran, through counsel, indicated that he had never been notified of the 1969 denial and requested a formal decision on that claim. The VA’s 1998 response acknowledged failure to notify the veteran of the 1969 decision but found that the 1982 letter informing the veteran that his 1969 claim had been denied finalized the issue and that his appeal rights had expired.

In 1998 the veteran appealed to the Board. The Board denied the veteran’s claim concluding that the back condition had been denied in 1969, that the September 1982 RO decision confirmed and continued the 1969 decision denying the claim and that the notice of the 1982 decision notified the veteran of his continued denial of service connection and included appellate rights information.

On appeal, the Court found the 1982 notice inadequate because it did not provide a reason for the denial in 1969 as required at 38 C.F.R. § 3.103. Ruffin v. Principi, 16 Vet.App. 12, 15 (2002).

Any input appreciated

Happy Trails

Paul

Think Outside the Box!
Link to comment
Share on other sites

"the RO did inform him in April 1973 that his claim had been denied and how he could initiate an appeal."

You could ask them for evidence to back up their statement there-

did you have anyone on your POA at that time? DId this POA gets copy of any decision and your appeal rights?

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

Link to comment
Share on other sites

"the RO did inform him in April 1973 that his claim had been denied and how he could initiate an appeal."

You could ask them for evidence to back up their statement there-

did you have anyone on your POA at that time? DId this POA gets copy of any decision and your appeal rights?

I have the April 1973 decision letter that explains my rights. Yes, I had a POA, but he did not receive a decision letter after my October 1973 VA exam, nor did I, nor was there one in the claims file, as the BVA discovered.

Edited by hurryupnwait

When I count my blessings I count my family and friends twice.

If you don't know where you are going, any road will get you there.

Well done is better than well said.

Link to comment
Share on other sites

What I am having trouble understanding:

1. They denied your claim in April

1A. I sent them new evidence and asked for a review May 1973.

2. They contiued the denial in July because of failure to appear at exam

3. You contacted the in August and said you would report to the exam

4. You went to exam in October

5. The denied again in November but did not notify you. (or there is no evidence they did.)

QUESTIONS:

IF they denied your case in April - what caused them to continue the denial in July for failure to appear at exam?

It doesn't make sense that they would deny you - and then send you to an exam -UNLESS you appealed.

No formal appeal was required yet - but what caused them to continue the denial

It looks like the Board is saying that you weren't notified in November - BUT since you didn't appeal the April decision after being told that you could - the November thing doesn't matter.

Welllll YESSSSSSSS - It DOES - But what I think would HELP the case is to address THAT point - about them saying there is NO evidence you were notified in November _ BUTTTTTTTTTTTT you were notified in April and informed of your appeal rights and did not appeal.

Then why in the heck did they continue the appeal in June??? Why were they sending you for an Exam --if they had ALREADY denied you in a final decision.

THAT is the point that makes your case OPEN - Don't let them get by with that "well he didn't appeal the april decision" stuff to try to say you had your opportunity to appeal and didn't take it..

So what happened between the April Decision and the June decision...

Free

When I count my blessings I count my family and friends twice.

If you don't know where you are going, any road will get you there.

Well done is better than well said.

Link to comment
Share on other sites

What I am having trouble understanding:

1. They denied your claim in April

2. They contiued the denial in July because of failure to appear at exam

3. You contacted the in August and said you would report to the exam

4. You went to exam in October

5. The denied again in November but did not notify you. (or there is no evidence they did.)

QUESTIONS:

IF they denied your case in April - what caused them to continue the denial in July for failure to appear at exam? I did not receive a denial letter in July.

It doesn't make sense that they would deny you - and then send you to an exam -UNLESS you appealed. I asked for a review and sent new evidence.

No formal appeal was required yet - but what caused them to continue the denial

It looks like the Board is saying that you weren't notified in November - BUT since you didn't appeal the April decision after being told that you could - the November thing doesn't matter.

Welllll YESSSSSSSS - It DOES - But what I think would HELP the case is to address THAT point - about them saying there is NO evidence you were notified in November _ BUTTTTTTTTTTTT you were notified in April and informed of your appeal rights and did not appeal.

Then why in the heck did they continue the appeal in June??? Why were they sending you for an Exam --if they had ALREADY denied you in a final decision.

THAT is the point that makes your case OPEN - Don't let them get by with that "well he didn't appeal the april decision" stuff to try to say you had your opportunity to appeal and didn't take it..

So what happened between the April Decision and the June decision...

Free

When I count my blessings I count my family and friends twice.

If you don't know where you are going, any road will get you there.

Well done is better than well said.

Link to comment
Share on other sites

I think they would have a hard time saying your case was closed then.

I would think sending in a document asking that the decision be reconsidered and submitting a new evidence would constitute a Notice of Disagreement (if they maintain one was required).

Otherwise, they considered it as NEW and MATERIAL and REOPENED your claim when they sent you to the Exam.

So they either did NOT respond to your NOD by issuing a SOC, or they did NOT issue a decision (if the claim was still pending and not reopened). In any event they were wrong. But I still think it is an appeal for an earlier effective date, rather than a CUE.

Good news for you if it is - as CUES sound good - but are harder to win.

I think I would argue ONE side - and also explain the other.

I received the decision on ____. I responded on _____ telling them I disagreed. I was not advised that my claim was reopened. However, I was sent to C&P exams after that, yet they never sent a Statement of Case on the NOD I filed with them on ____. Therefore I was not provided with any information that the claim was denied, reasons for the denial, or information of how to further appeal. My claim remains pending.

If The VA did not consider the NOD I filed ____ a disagreemet with there decision, they apparently considered it New and Material Evidence - and re-opened my claim at that time, as they sent me for a C&P exam after receiving it.

However, I still never received any notification from the RO about the status of my claim after that point. Therefore, I was not notified of any decision.

If the RO considered my ____ communication to be a NOD, my effective date would be ___, the day I filed my orginal claim, as I never received a SOC following their receipt of my NOD.

If the RO considered my ____date communication to be a request to reopen with new and material evidence, then my effective date would be ____(the date they reopened the claim) as I never received any notification of denial of my claim from the time it was reopened.

____

I would spell it out - and let them know - no matter which game they play - the end result is closely the same... with only a few months difference.

Don't let them play the --well he was not issued a SOC, but that doesn't matter because they told him he can appeal in April and he didn't..blahblahblah..

Thanks for explaining. It didn't make sense that they said you did NOT disagree with the decision, yet they sent you to a doctor after that.

I would argue BOTH points - to try to avoid being in BVA limbo -- If you just argue the NOD --- they will delay it forever, remand it back to the RO to see if they considered your May letter a NOD -- play it back and forth for awhile, wear you down, wear you out...hope that you don't realize if they didn't consider it an NOD that STILL doesn't put you out of the game on the re-opened claim that was not finally decided as you weren't notified (or they don't have proof that you were)

(and with that much retro - they will probably be SEARCHING for a lost record for sure!!!!)

But if you argue BOTH points - you let them KNOW -- You can call it or not call it whatever you want - but either shot you call - I WIN!

Free

Think Outside the Box!
Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now


  • Tell a friend

    Love HadIt.com’s VA Disability Community Vets helping Vets since 1997? Tell a friend!
  • Recent Achievements

    • LtDave earned a badge
      Week One Done
    • HillTopVet earned a badge
      First Post
    • kidva went up a rank
      Contributor
    • AFguy1999 went up a rank
      Rookie
    • kidva earned a badge
      One Month Later
  • Our picks

    • These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.

      Service Connection

      Frost v. Shulkin (2017)
      This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected. 

      Saunders v. Wilkie (2018)
      The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.

      Effective Dates

      Martinez v. McDonough (2023)
      This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.

      Rating Issues

      Continue Reading on HadIt.com
      • 1 review
    • I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful.  We decided I should submit a few new claims which we did.  He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims.  He said that the VA now has entire military medical record on file and would find the record(s) in their own file.  It seemed odd to me as my service dates back to  1981 and spans 34 years through my retirement in 2015.  It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me.  He didn't want my copies.  Anyone have any information on this.  Much thanks in advance.  
      • 4 replies
    • Caluza Triangle defines what is necessary for service connection
      Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL

      This has to be MEDICALLY Documented in your records:

      Current Diagnosis.   (No diagnosis, no Service Connection.)

      In-Service Event or Aggravation.
      Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
      • 0 reviews
    • Do the sct codes help or hurt my disability rating 
    • VA has gotten away with (mis) interpreting their  ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.  

      They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.  

      This is not true, 

      Proof:  

          About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because  when they cant work, they can not keep their home.  I was one of those Veterans who they denied for a bogus reason:  "Its been too long since military service".  This is bogus because its not one of the criteria for service connection, but simply made up by VA.  And, I was a homeless Vet, albeit a short time,  mostly due to the kindness of strangers and friends. 

          Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly.  The VA is broken. 

          A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals.  I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision.  All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did. 

          I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt".   Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day?  Va likes to blame the Veterans, not their system.   
×
×
  • Create New...

Important Information

Guidelines and Terms of Use