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

[Ricky]

Paul was this a BVA case that you filed? If so could we have the docket number so we could review it?

I have some of the same questions that have already been asked and not answered (unless I am missing a post)

1. What happened during the period of Apr 73 and July 73. It appears that you took no action on the Apr 73 decision so why were they still looking at the claim in July 73??????? Now I been around the block a couple of times and know for a fact that if they issue a rating decision and the vet does not reply they just sit happily waiting for the appeal time to expire and then strike like a snake when the vet does reply outside the appeal period. Surely they did not simply like you so much they attempted to open the case by themselves in order to protect you!!!!!!! So why did they continue the claim and issue another rating decision in July 73???

From what you have posted here, and trust me I am confused, it appears that the real problem is that they never notified you of the November 73 rating decision. Their argument that a notice of a Apr 73 decision does not hold water in trying to justify the non-issuance of a notice of denial on a Nov 73 rating decision.

Just based upon my confused understanding of your post it appears that this should be the bases of a cue argument in that notice of a Apr 73 rating decision has nothing at all to do with the fact they did not issue a notice of decision on a Nov 73 rating. 1+1 just ain't adding up to three (oops two) here.

If they are allowed to use such an unsubstaniated argument then they could come back and tell me that the notice they issued on my 2000 denial of service connection will suffice for a notice of a decision on my 2008 claim. Don't work like that. However, we are dealing with the VA and I am sure that if the montgomery RO saw this they would try it. dummies!!!!!!

Edited January 25, 2008 by Ricky

[Pete53]

Unfortunately sending a letter that you disagree is only part of what needs to be done and this is where this claim will probably be shot down.

You have to file a FORM 9 within one year of the VARO decision. That is on the Vet to do and for some reason I have never understood so many fail to do that.

When you send the letter saying you disagree all the VARO does is put your "C" File in a pending cabinet and after 1 year they close it and move it back to regular.

Fill out and sign the Form 9 or the letter you sent is not worth a dime.

Sorry but that is another thing the VA uses to screw Veterans.

[hurryupnwait]

Unfortunately sending a letter that you disagree is only part of what needs to be done and this is where this claim will probably be shot down.

You have to file a FORM 9 within one year of the VARO decision. That is on the Vet to do and for some reason I have never understood so many fail to do that.

When you send the letter saying you disagree all the VARO does is put your "C" File in a pending cabinet and after 1 year they close it and move it back to regular.

Fill out and sign the Form 9 or the letter you sent is not worth a dime.

Sorry but that is another thing the VA uses to screw Veterans.

Hi Pete

Here is a chronological list of events.

1. I filed an application on January 12, 1973.

2. VA requested for Information and medical records on Feb 27, 1973.

3. VA requested for pertinent records from NPRC on March 19, 1973

Note on request says "if can't get records disallow"

4. NPRC sent RO a form stating that "All available medical records were furnished your office on 27 Feb 73.

5. They denied my claim on April 24, 1973, no C&P, just a review of records.

On a standard form it states "Available records do not show that you received treatment for this condition during service nor was it recorded in the report of your examination at time of your discharge." There were several service medical records in the c file about being treated for my back disability. Also in the c file, was a physical exam to see if I was fit for the Army, I was not.

6. May 18, 1973, I sent them this letter, "To whom it concern The enclosed statements are from my doctor and my company accident report. Please review these records in relation to my disability compensation claim. Thank You

signature and claim number".

7. June 12 and June 14, 1973, VA requested for a physical exam.

8. They continued the denial on July 24 because of failure to appear at exam. I signed at the bottom that I was willing to report for an examination and sent it to the RO.

9. Aug 16 and 17, 1973, VA requested for Physical exam.

10. I went to exam on October 11, 1973, I have a copy of this report. It basically states back strain.

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

12. In Jan 1992, I requested my medical records and in there was a form 21-6796b Dated Nov 20, 1973, with a heading "Memo Rating Regarding Claimant's Status". It gives the medical background and medical evidence. No mention of how to appeal or that my claim was denied.

Happy Trails

Paul

[Pete53]

Good Luck I think that you have a chance all things considered but you know the VA

My rant about Form 9 was mostly for people with current Appeals