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Assistance Needed


Bidogg03
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Question

I'm unsure how to start of the question; however, I will do my best to describe the scenero.

Discharged from the Army, January 5, 1996.

Filed a claim for undiagnosed illness for frequent urination and skin rash in 1997. Claim was denied. I am receiving a 10% rating for LBP and Spondylitis.

I have never since 1997 made an issue or filed any claims until now. Upon reading the rating decision from 1997, I have found many issues of concern. VA stated that they used my service records from 1988 to 1995.

On their decision about the rash they stated that in June 1993 and December 1993 were the only two times that I was seen for the rash on my leg. However, after reveiwing my service medical records it clearly shows that I was also since several times in 1994 and 1995 for the rash.

As well, when upon my release and I was seen by VA for the claim they stated that there is some chronic skin changes that may be due to a rash; however the area is heeled and there is currently no rash present. They are suppose to conduct the exam only when the issue is clearly present correct?

As well if I did not rebut the decision then can I still have the claim reopened due to new and material evidence as well as the VA's failure in "Duty to Assist" for they clearly failed to read my entire military medical records during the decision process.

Any help in this matter would be greatly appreciated.

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Bigdog

If your decision awarding (or denying) benefits was more than a year ago, then you passed the "regular" appeal review process time limit.

Not timely appealing limits your options, since this claim is now "final" and is not subject to review except by filing a "Clear and Unmistakable Error" claim.

However, if you have "new and material evidence", you may be able to reopen your claim.

Bell vs Derwinski has the "constructive notice" rule, where the VA is considered to have some evidence in their possession, even if they dont. The VA is required to consider all the evidence before rendering a decision, but sometimes its hard to know if they considered your evidence or not.

IMHO you have an "uphill battle" trying to prove CUE, but you might get the claims started again with N&M E....then file for an EED (possibly with CUE) to try to get your retro benefits.

Most VEts work on winning their benefits, THEN worry about the effective date. The VA LOVES to turn a simple thing into a multi step complex process.

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Thanks for the respone. I was really unfamiliar with the process when I file in 1997. However would additional complaints and documentation since then from civilian medical doctors be enough for "New and Material Evidence?"

Bigdog

If your decision awarding (or denying) benefits was more than a year ago, then you passed the "regular" appeal review process time limit.

Not timely appealing limits your options, since this claim is now "final" and is not subject to review except by filing a "Clear and Unmistakable Error" claim.

However, if you have "new and material evidence", you may be able to reopen your claim.

Bell vs Derwinski has the "constructive notice" rule, where the VA is considered to have some evidence in their possession, even if they dont. The VA is required to consider all the evidence before rendering a decision, but sometimes its hard to know if they considered your evidence or not.

IMHO you have an "uphill battle" trying to prove CUE, but you might get the claims started again with N&M E....then file for an EED (possibly with CUE) to try to get your retro benefits.

Most VEts work on winning their benefits, THEN worry about the effective date. The VA LOVES to turn a simple thing into a multi step complex process.

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  • HadIt.com Elder

Instead of asking for CUE I would concentrate on getting a higher rating. Once obtained I would look into CUE, Its actually much harder to get CUE than anything else.

Just my opinion.

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Pete,

Thanks again, for I will do that. My current situation is that I can reopen the previously denied claim as well as getting the back increase. I know that getting the retroactive process completed on the rash is going to be tough as well, but looking at the information I got, I believe that I can do this.

Instead of asking for CUE I would concentrate on getting a higher rating. Once obtained I would look into CUE, Its actually much harder to get CUE than anything else.

Just my opinion.

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  • HadIt.com Elder

I'm unsure how to start of the question; however, I will do my best to describe the scenero.

Discharged from the Army, January 5, 1996.

Filed a claim for undiagnosed illness for frequent urination and skin rash in 1997. Claim was denied. I am receiving a 10% rating for LBP and Spondylitis.

I have never since 1997 made an issue or filed any claims until now. Upon reading the rating decision from 1997, I have found many issues of concern. VA stated that they used my service records from 1988 to 1995.

On their decision about the rash they stated that in June 1993 and December 1993 were the only two times that I was seen for the rash on my leg. However, after reveiwing my service medical records it clearly shows that I was also since several times in 1994 and 1995 for the rash.

As well, when upon my release and I was seen by VA for the claim they stated that there is some chronic skin changes that may be due to a rash; however the area is heeled and there is currently no rash present. They are suppose to conduct the exam only when the issue is clearly present correct?

As well if I did not rebut the decision then can I still have the claim reopened due to new and material evidence as well as the VA's failure in "Duty to Assist" for they clearly failed to read my entire military medical records during the decision process.

Any help in this matter would be greatly appreciated.

"can I still have the claim reopened due to new and material evidence" JMHO,... this is your best bet.

Good Luck,

Cmdr. Bob

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  • HadIt.com Elder

Failure of duty to assist is not the basis of a CUE. I know from experience. The VA did not even include my appeal rights in my original decision and the BVA says this is not CUE, so duty to assist is in the wind. If there is a single question of medical judgement in your CUE it dies. BVA says that no matter how unfair your decision is that is not a CUE. Think about that.

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