I Think I Found The Way Into The System! (I Hope). Please Read

[cojolio]

OK, so after reading this board and another one that I won't promote here for two days straight (literary), I think I found a solution to my problem. (Re-opening my lower back & numbness of left hallux denied back in 08 without NOD)

Here are the quick facts (read my other two posts if you need more details plz, don't want to beat a dead horse).

In 2008, I was MEB Boarded under VA Code 5271 (Limitation of Motion with Deltoid Ligament Repair) 20% following Airborne injury.

While out processing, a lady told me to fill out a form listing everything I wanted to claim with VA: so I put lower back pain, right/left knee pains/ numbness of my left toe.

I ETS from service June 18,2008. The VA RECEIVED my claim on Feb 20^th as stated on the award letter. On the award letter DATED July 22th, 2008, they approved my ankle claim (remember MEB Board 20%...) WITH AN EFFECTIVE DATE of JUNE 19th, but denied everything else stating "we determined that the following conditions was not related to your military service, so service connection couldn't be established".

OK, so I get on Ebenefits and noticed the following:

Details on your Compensation claim received on 6/19/2008 (my award letter says feb 20th)

• Regional Office of Jurisdiction: Atlanta
• Power of Attorney: DISABLED AMERICAN VETERANS
• Status: Closed
  Where Should You Send What We Need?
  Department of Veterans Affairs
  Atlanta Regional Office
  PO Box 100021
  Decatur, GA 30031
  
  
  Contentions
  
  • chronic left ankle pain
  • lower back
  • (((((((missing numbness of left hallux, left/right knee conditions?)))))
    

What Have We Done?

Items Date Opened Suspense Date Follow-up Dates

Requested service treatment records. 6/26/2008 10/24/2008

So, they requested my service treatment records on 6/26 (but my effective day for my ankle is 6/19…with everything else denied, at this point I haven't been to any VA hospitals either). Although I don't know what a suspense date is, it is blank, as well as follow-up dates.

So, do you guys think that they made their decisions without having my service records and/or my MED Board paperwork as well? If they did not, can I reopen it using N&M or CUE or anything else since they didn't consider my srv records to begin with? What do you guys think? Or am I getting excited over nothing…I have been going to the VA hospital and my numbness in the toes and lower back pain is WELL documented (both in my srv records, medical board, and VA medical records) so I can prove its an ongoing issue...

PS. I would like to point out that on Ebenefits, there is a claim called "administrative review" but when I click it is basically the same stuff as I pasted above..Showing the same dates…is this important?

PS. For those wondering if I have the Bases and Reasoning for the claim…I don't…, never got it in the mail, never seen it. All I have is the notification letter they sent me after I call and asked them. I file a FOIA on 3/16/2011 and still on Phase 1 on ebenefits in an attempt to get the bases and reasoning part.

ALSO, I can post the award letter, or any other paperwork that might clear things up if need be...

Edited September 20, 2011 by cojolio

[cojolio]

This thread is actually a run on from the following link :

Carlie Sorry, I deleted the images on the old post and just wanted to see if I had a change of reopening by establishing that the VA decided the claim without the srv records...and if they did...can I use evidence that is (and always been) on those records to reopen it...? I have called the VA and asked about the rating decision again, to see if is anything that will include the bases and reasoning section; but im not getting my hopes up since I did it in the past and they just sent the 5-page letter I posted it...

PR- that blue sheet, will it contain the codes of what rated on my claim...or is just a long list of codes listing everything?

[carlie]

carlie - is that directed at me? Or am I all of a sudden being paranoid?? ;-)

Thanks,

pr

pr,

That's paranoia slipping in on you!

I posted the link for continuity of the issue - I was thinking about

merging the 2 topics but decided it was best to leave them alone.

You offered jbasser the opportunity to give you a little slap -

can I get in on that action : - ?

[carlie]

Carlie Sorry, I deleted the images on the old post and just wanted to see if I had a change of reopening by establishing that the VA decided the claim without the srv records...and if they did...can I use evidence that is (and always been) on those records to reopen it...? I have called the VA and asked about the rating decision again, to see if is anything that will include the bases and reasoning section; but im not getting my hopes up since I did it in the past and they just sent the 5-page letter I posted it...

co,

It's imperative to get a copy of the actual rating decision to check the Evidence and Reasons and Basis Section. IF that evidence was already considered -

then it wouldn't be N&M - - if not already considered, then 38 CFR 3.156c MIGHT be for application. At this point you don't even know for sure

yet if this issue was rolled into something that has already been granted SC.

JMHO

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1902c29a873f0f826710fb81cba96ef1&rgn=div8&view=text&node=38:1.0.1.1.4.1.60.65&idno=38

[cojolio]

co,

It's imperative to get a copy of the actual rating decision to check the Evidence and Reasons and Basis Section. IF that evidence was already considered -

then it wouldn't be N&M - - if not already considered, then 38 CFR 3.156c MIGHT be for application. At this point you don't even know for sure

yet if this issue was rolled into something that has already been granted SC.

JMHO

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

http://ecfr.gpoacces...1.60.65&idno=38

Carlie,

Thanks so much for the posted info!. I guess Im just trying to find a way around not waiting for my FOIA request for the 2008 Rating Decision (including reasoning and bases). I submitted it back in march 16 and still on phase 1 on ebenefits. Like I said, I tried calling them and they told me over the phone that the only thing they have in the computer -and willing to mail me- is the same notification letter I posted here, but not the rating decision...Is there a legal time limit the VA has to process FOIA requests? Or can they just get away with it saying they are working on it...even 10 years later...?

I just find it hard to believe that a decision from back in 2008 is so hard to find (not even in the computer..)...I could understand if its for a claim from decades ago...but mid 2008? (and I called in 2010 and 2011 and they didnt have it in the comp either)...?Oh Well...I guess Ill sit tight and wait for their FOIA response.

[carlie]

I suggest if you don't have a VSO go visit one.

They should have absolutely no problem in accessing and obtaining

an actual copy of the complete rating decision.

I still have a strong feeling you have a copy and can't locate or identify it.

Without a complete copy of the rating decision - in my opinion, you don't have a

starting point yet.

JMHO

[Philip Rogers]

Yes, it'll list each condition, the number they coded it under and whether it's service connected(SC) or NSC. It also contains a lot of other info I can't think of at present.

As for reopening, you don't want to reopen as they assign a new claim date. You'll want to CUE it and claim that the decision wasn't proper and therefore the claim remains open, also. jmo

pr

Carlie Sorry, I deleted the images on the old post and just wanted to see if I had a change of reopening by establishing that the VA decided the claim without the srv records...and if they did...can I use evidence that is (and always been) on those records to reopen it...? I have called the VA and asked about the rating decision again, to see if is anything that will include the bases and reasoning section; but im not getting my hopes up since I did it in the past and they just sent the 5-page letter I posted it...

PR- that blue sheet, will it contain the codes of what rated on my claim...or is just a long list of codes listing everything?