Cue?

[hurryupnwait]

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

[free_spirit_etc]

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

[Berta]

"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?

[hurryupnwait]

"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 January 23, 2008 by hurryupnwait

[hurryupnwait]

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

[hurryupnwait]

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

[free_spirit_etc]

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