Just Got Original Claim Decision, But What Path To Fix 3 Non-awards?

[Thad]

I don't know how to go now: NOD vs appeal vs hearing vs CUE vs whatever, for the following problems:

1) When is an informal claim not a claim?

2) How better to connect left knee to right knee & flatfeet?

3) Conditions that VA deferred?

What would you suggest as an approach to resolving these issues, and should I try to correct just 1) and 2) related to the current award, or go after 3) at the same time? Does sending in new information help or can I only do that based on which appeal route I go? Seems like what I want them to ask them to do is to use all the SMRs and IMOs provided, instead of blowing them off.

Have been DITY so far (not working with a VSO, local one didn't seem too interested). Sorry for the long post: dind't want to ask 3 separate questions in case what to do altogether was different than if there was only one issue.

MANY thanks, Thad

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1) When is an informal claim not a claim?

In Jul 2008 I sent in a short, two-sentence form 21-4138 saying that it was an "informal" claim per 38CFR3.155 requesting "service-connected disability compensation", without listing any specific body parts or conditions, and said that I was collecting and would submit the needed records and evidence. It pretty much matched one of the short examples in the "Vet's Survival Guide" book. VA replied referring to my "application for benefits" and my "application for compensation" and told me to complete a form 21-526. They received the formal claim (within 12 months) on 5/27/2009; their award letter 6 months later uses that formal claim date as the effective date, saying "Your previous form 21-4138 filed 7/3/2008 did not specifically list your claims and does not constitute an informal claim for benefits. 38 CFR 3.155 states that any such informal claim must identify the benefit sought...your attempt did not name which compensation and disability benefits were being sought." Getting the extra year is important, since it includes 6 months of 100% post-hospitalization time.

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2) How better to connect left knee to right knee & flatfeet?

They awarded 30% right knee (osteoarthritis, post-TKR) and 0% bilateral pes planus as direct service-connected based on SMRs, but denied left knee (osteoarthritis, post-TKR). I documented 5 during-service bilateral knee pain visits (for which orthotics were repeatedly prescribed). Reason VA cited was that only right knee needed surgeries during service and left knee was never formally diagnosed with osteo during service. In addition to general words about parachuting and knees and whole-body-effect of osteo, I had 2 IMOs from post-service ortho dr and from podiatrist both stating that knees were service-connected. VA said those opinions looked at SMRs but not service x-rays and were just conjecture; C&P exam dr said he had no service x-rays so any conclusion would be conjecture, and that the left osteo could have just hit post-service. I thought the original IMOs were clear enough or would get the benefit of reasonable doubt in the vets favor, but the VA decision says the IMOs conclusion of SC is not in agreement with the C&P opinion that concluding SC would be conjecture. It would be possible to ask both ortho and podiatrist to write new IMOs specifically connecting left knee to right knee and flatfeet, now that those are SC (going secondary instead of direct SC?). Getting the left knee is important, since it would put me at 60% total with the bilateral.

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3) Conditions that they deferred?

I also claimed cervical and thoracolumbar IVDS, and VA just says that decision is deferred "for further development" and "because we need additional evidence". I sent in SMR/CMRs on that and a third "is service-connected" IMO. The C&P dr didn't seem to know what IVDS stood for, and would only do the thoracolumbar ROM (then didn't record it in his notes). I had already sent in both ROM testing from a civilian dr certifying that they had used the mil/VA ROM testing guidelines. I think VA has enough to go on, and just want them to issue a decision using what's already there.

[broncovet]

My 2 cents on this, Thad.

1. As long as you have filed a NOD within one year of the decision, forget all about CUE. Cue is harder to prove than a regular appeal, so dont make things more difficult on yourself. Cue only applies when you fail to meet the one year deadline for filing a NOD.

2. As to your question about "when is an informal claim not a claim", it is true that the regs require that you "specify the benefit sought". However, if you filed a formal claim for benefits, and then went to a VA doc and his medical records say something like, "Doc, I am depressed due to bad things I saw in military service and I can no longer get a job and I need help"...then that medical exam meets the "specify the benefit sought " clause and is an informal claim. You dont need to use the words, "I want to apply for TDIU". The law is required to give a liberal interpretation of all the Veterans filings and this does not require you to have intimate knowledge of all the VA's many TDIU requirements and lingo. The VA is required to assist you and assume you are applying for the maximum benefit allowable by law.

3. Make sure your decision addresses all your issues. If you told your VA doc you we depressed due to the war and cant find work, and the decision does not address depresion or TDIU, then include in your NOD something like. "I disagree with the decision dated Nov. 10, 2009 as the decision did not address my claim for depression and TDIU made at Dr. Kevorkians office on June 1, 2008." There are new court cases where the VA can just blow off Vetrans claims and not even address them, and address other issues with a decision and those are "deemed denied". "Deemed denied" is a term I use which means, in this context, secretly denied, as you never got a decision.

[Pete53]

When you notify the VARO of an informal claim the clock starts ticking and you had best get a claim in beofre a year is up.