I Need Help Again

[Mr cue]

ok i am about to do my recondsideration of a bva claim now if my claim was never adjudated 94and then i was granted 60% for same issue in 2001. i did a cue claim 2008 bva say there can not be a cue of a open claim.now bva did my claim and granted me 20% how is that if i met the cretria for rating code for 60% in 94.or should my 60% effective date now be 94 they treated as a reopen claim in 2001. i see a game here if i dont get 60% i have a iu claim that was remand it go back to 94 if not 60% there going to denied. any body got a cases or something like that that my help. crazy part i still have not got my retro check for 40%-94-2001 this crazy and now my iu claim is back with amc. my claims is being expidated due to hardship. and no one to call crazy.

[carlie]

Berta..Gee you are a whiz, but is it not true that you have to file a MfR within 90 days of the BVA decision, or the BVA decision becomes final?

bronco,

I'm not Berta - - - BUT .........

From 38 CFR

20.1001 Rule 1001. Filing and disposition

of motion for reconsideration.

(a) Application requirements.

A motion for Reconsideration must be in writing

and must include the name of the veteran;

the name of the claimant or appellant

if other than the veteran (e.g.,

a veteran’s survivor, a guardian, or a

fiduciary appointed to receive VA benefits

on an individual’s behalf); the applicable

Department of Veterans Affairs file number; and the date of the

Board of Veterans’ Appeals decision, or decisions, to be reconsidered.

It must also set forth clearly and specifically the alleged obvious error,

or errors, of fact or law in the applicable decision,

or decisions, of the Board or other appropriate basis for requesting Reconsideration.

If the applicable Board of Veterans’ Appeals decision, or decisions,

involved more than one issue on appeal, the motion for reconsideration

must identify the specific issue, or issues, to which the motion pertains.

Issues not so identified will not be considered in the disposition of the motion.

(b) Filing of motion for reconsideration.

A motion for reconsideration of a prior Board of Veterans’ Appeals decision

may be filed at any time. Such motions must be filed at the following address:

Director, Management and Administration

(01E), Board of Veterans’ Appeals,

810 Vermont Avenue, NW., Washington,

DC 20420.

http://edocket.access.gpo.gov/cfr_2009/jul...8cfr20.1001.pdf

[Mr cue]

This is my letter asking for reconsideration of my bva decision.

First I would like to say that I believe my cases should be reconsider on the bases that my claim from 94 was for increase of the initial 10% give to me for my neck. I appeal and believe that since my claim was for and increase claim for my neck form 94 that was never adjucadated and I put in paper in 2001 which were treated as new material and I was granted 60% for my neck I believe my effective date should be 94. For my 60% rating I was rated under 5322 some one with a gunshot wound and I had no gun shot in 94. U have changed my rating code. Now to 5293 I don’t see how you can even say that I did not meet the requirements for a 60% rating under rating code 5293 in 94. A 60% rating is warranted when the intervertebral disc syndrome was pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk or other neurological findings appropriate to the site of the disk.

I had neck spasm in 93 on med 200 report it tell of this all my records as u point out say that I had spasms in my neck. 94- until I had nothing but symptom that were compatible with sciatic neuropathy with pain u tell of all this and u even say that I had no neurological finding which is the last criteria for a 60% rating under 5293 I also believe there was a error of laws and regs. There must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by the va if the criteria reasonably describe the claimants disability level and symptomatology, than the claimant disability picture is contemplated by the rating schedule the assigned scheduler evaluation is therefore adequate and no referral is required. I don’t see how this was over look and it even speaks of how marked interference with employment. Should be look at and I have not worked since services. Even when u take a look at if I should get extra-schedular rating u tell that I have cervical disability manifests with pain and limitation of motion with associated neurological symptoms of sensory deficit. U never talk of my services records every thing is 94-2001 I have a med 200 report 93 from army which tell that I had neck spasms this is not talk about or my neck therapy note from service tell that I was been treated for neck spasms. The rating code 5293 is not for neurological finding it for what I have muscle spasm absent ankle jerk, or other neurogical finding.

For my elbow I believe there should be reconsideration because u says that I had problem with my hand but it would be pyramid. The board notes generally that because the veteran is already service connected for neurological manifestations of the cervical spine that he would not be entitled to a separate disability rating for neurological impairment of the left elbow please tell were is any of my neurological problem were every rated 94-until they are not even if u had give me 60% under rating code 5293 it is not for neurological defect its for the muscle spasms of the neck symptoms compatible with neuropathy. I believe this is a cue because from 94-until there is no rating give for my left elbow neurological problem so there can not be pyramid. I was in a sling for 3month after the fall my army notes tell of this. I wore 11/2after services u never talk of any reports before my comp exam 94 my army records are there u talk of them in the begin but nothing else.

I believe you are not rating me 60% so that I can not get my IU which was remanded. I have not work since services due to my disability. And that u are cueing laws and reg that were in effect in 94 I believe I should get reconsideration due to all this. The non-adjudication of a claim expressly raised by the veteran. If the record shows veteran made a claim, which was simply overlooked and not decided by the VA, the claim is unadjudicated. That is it was never decided and it remains an open claim. If a veteran files a claim for the same benefit sometimes thereafter, normally by filing new and material evidence which reopens the claim, the effective date for this newly reopened claim relates back to the date of the filing of the prior, unadjudicated claim. So please tell how it is that I was granted 60% in 2001 and my claim for my neck was still open so my effective date is now 1994. I believe this is an error of the law.

Please take a look at what is been done this not right I have not work due to this I have no ssi credit to get ssdi when older and I was pay 89.00 why my claim was never done I was not even look at for a pension. And it was part of the record then that I was not working I believe. That there are many things that have to be reconsider in my case. On decision u look at all the different rating codes u got to 5293 60% and u made no reference. That is an error of reg and laws I believe. All of my records where do I get relief I have over 17 yr of doctor report on the same thing. My neck and left arm.

My cases has been advance up the docket due to my hardship and I was granted retro pay and I still have not rec a letter or any thing please help with this. I was granted 40%-94-2001 I done even no who to talk to that say amc has it there is no way to get to them they don’t answer iris or e mail I have fax things before they don’t get them.

You remanded my IU claim for a doctor to tell if I could work in 94 is this for really I have been in voc rehab with 10% because of my employment handicap. I have not and was not working in 94 comp exam 94 say that I was not working my SSI earning reports show that I have not work in all these years all of this is part of the record. But some doc that has never treated me. Can tell if I could have work in 94. I believe this is an error of the law all of my records say I was not working. How is it because my claim was over look for 17 yr that u can just for get that I won in 2001 so my effective date is 94 u are trying to do my claim all over again how can this be right please tell me.

If everything I am asking for was won in 2001 and then it is found that my claim from 94 is still open is my effective date now 94 please answer this because I believe it is the law. And I believe u are error the law

[Mr cue]

no vso want to help. not get lawyer to afer bva. you 120 dat to do the reonsideration was going to wait but they got me mad with all this play. man even put comp exam at 7.45am hat are thet hoping i miss it. got letter wed comp exam mon crazy.

[Berta]

I woke up this AM concerned that I gave you the wrong advise here yulookin-

because it appeared to me that the BVA could not take jurisdiction over the CUE (yet)-therefore it is still at the RO.

So you can't ask them to reconsider the CUE- but you can ask them to reconsider anything that concerns the open claim-

I remembered too- something happened from BVA since this decision I think- maybe a remand? As well as the RO award which you challenege EED on.We dont know what the remand said if there was one-

Also BVA said the claims were 'inextricably interwoven'-as the CUE hinges on the open claim- that is where the problem lies-

Did you fully challenge the RO award as to the EED raising the same argument you put in the Motion?

I think I got this all mixed up-

Did this reconsideration go to the RO or the BVA? as the RO has to be the ones to reconsider the EED. (I think)

What Vet rep refused to help you!

What veterans organizations have you contacted?

They are not paid to refuse any veteran with a valid claim.

Is the comp exam for the same disability in this claim or for something else?

If you sent this to BVA already-that is OK- but raise this same argument to the RO and send them the medical evidence (even if they should have it anyhow) as to why the 1994 rating was wrong based on the clinical record at that time.

Carlie was right to continue to send them more evidence for the "open" claim.

As your BVA case states

"In this case, no final and binding

determination exists as to service connection for the left

elbow or the evaluation assigned for the neck disability.

The perfected appeal prevented the June 1994 decision from

becoming final."

[Berta]

It has been years since I filed a Motion with the BVA- and I found there are many Motion decisions there such as:

http://www4.va.gov/vetapp00/files3/0026639.txt

The regulations for Motions of this type are cited in this decision- and a claimant's Motion can often be dismissed without prejudice, then re-filed.

I believe any time limits for motions are found on the enclosures to any I-9 form.

Since the 1994 case is still open -did you ever filed a NOD yet?

If not ,if the RO provides any decision you choose to NOD, then of course you could get a lawyer right away.

With this claim still open since 1994 you have the means of getting resolve right at the RO level if your medical evidence in 1994 warrants the higher rating or TDIU consideration at that time if the rating should have been 70& then.

[Mr cue]

my cases is with bva i dont under stand if my neck claim was open 94 and 2001 i put in papers and was award 60% for my neck the effective date is 94. this is what that say happen i got 10%94 did nod ro never send my appeal to the board.2004 did cue this is when i find out that my claim was still open there can not be a cue of a open claim. so i am like wow this just like wining the cue. be cause now my effective date should be 94 right. yes my vso drop me when i did the cue didnt want me to do .i really believe in my heart. that she new they mess up that y 10%-60% iu come on.told me i took that and that would be it. so now every one like it a bva we cannot touch it. srew them any way i did this with help of hadit i will get lawyer if it go to court. dont see it going there. they hope i miss 120 day to do reconderation. and miss 7.45 am comp exam.i thing i can do a new claim at ro if this all fail. because now i am talk about some thing 94. i guess wish i had scanner so u can see the new bva decision its crazy. that should post it soon.