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[Charleese]

Hi everyone,

My husband spoke to the people at RO in Connecticut. They connected him to a supervisor, who he questioned as to whether they received his NOD on his 1948 claim. She said it was with the Appeals Department and that she would get his file and look and see if it was in it and call him back on Monday.

A half hour later she called him back and stated that she had the file and that she was going to send him a letter out today, which will give him options as to what he would want them to do. She even mentioned that one of the options was if he wanted to go to trial. He forgot to ask what the other options were.

My question to all has this been done to anyone here at hadit before, and if so can they tell us what his other options are? Does this mean that his NOD is being denied and that is why they are sending this letter. In his NOD we state that with his objective medial evidence, his subjective testimony, and a notarized statement from a friend of his, that this demonstrates that he submitted his claim in December 1958. The notarized statement states that his friend witness VA Representative handing him an Application for VA compensation. He witnessed him setting down at the table with and in front of him, and fill out that Application. He witness when my husband finished filling out that Application and getting up and handing that Application to VA Representative who was standing close to them talking to a lady that was in the place. He also witnessed Representative taking that Application and looking at it, and after taking that Application from my husband he witnessed Representative saying to my husband that the VA would be contacting him soon. They then left and came home. This friend also had an opportunity to go with my husband again to the VA in Tazewell to check on the status of my claim.

In the end he states in his NOD that With the objective medical evidence, his subjective testimony and friend's notarized statement Reasonable Doubt or Relative Equipose or both Reasonable Doubt and Relative Equipose should prevail in their decision to grant me an earlier effective date of 1958.

Please let me know what other options they are talking about and does that letter mean that they have denied his NOD.

Thanks everyone!

Charleese

[Wings]

Trial is probably a misnomer. I would think they meant "hearing". You sure about the word "trial"?!

Anyway, not much you can do until you get some written correspndence!

Let us know . . . ~Wings

[Vike17]

Charleese,

Which date do you mean 1948 or 1958? Was one of those just a typo?

In any case it doesn't really matter. As Rickb54 said you can only file a NOD on a denial of benefits or on some other adverse action from VA, and that has to be done within one year of the adverse action. Did the VA deny his claim back then?

Does your husband have proof of a claim being submitted back then other than the notarized statement, such as letters from VA that acknowledge them receiving the claim, old C&P reports from the claim? I don't think just a notarized statement from a friend stating that he witnessed him filling out an application for benefits back then will do! You also stated that;

"his subjective testimony and friend's notarized statement Reasonable Doubt or Relative Equipose or both Reasonable Doubt and Relative Equipose should prevail in their decision to grant me an earlier effective date of 1958"

Relative Equipose means the evidence is in equal balance and, therefore, warrants the implementation of the Reasonable doubt rule. They are not seperate form one another.

I'm sure this isn't what you wanted to hear, but unless you have objective evidence that the VA received his claim back then, you're probably on the loosing end of this. As Rickb54 said, your recent NOD will probably be considered as a request to re-open the claim.

The only way I see you remotely suceeding in this is if, as Rickb54 said, the VA rendered a decision back then and there was CUE within that decision. This isn't meant to be discouraging, but the senario with CUE would be very difficult to prove, as any CUE claim is!

Vike 17

Edited July 29, 2006 by Vike17

[Guest anfrnkie]

Charleese,

Which date do you mean 1948 or 1958? Was one of those just a typo?

In any case it doesn't really matter. As Rickb54 said you can only file a NOD on a denial of benefits or on some other adverse action from VA, and that has to be done within one year of the adverse action. Did the VA deny his claim back then?

Does your husband have proof of a claim being submitted back then other than the notarized statement, such as letters from VA that acknowledge them receiving the claim, old C&P reports from the claim? I don't think just a notarized statement from a friend stating that he witnessed him filling out an application for benefits back then will do! You also stated that;

"his subjective testimony and friend's notarized statement Reasonable Doubt or Relative Equipose or both Reasonable Doubt and Relative Equipose should prevail in their decision to grant me an earlier effective date of 1958"

Relative Equipose means the evidence is in equal balance and, therefore, warrants the implementation of the Reasonable doubt rule. They are not seperate form one another.

I'm sure this isn't what you wanted to hear, but unless you have objective evidence that the VA received his claim back then, you're probably on the loosing end of this. As Rickb54 said, your recent NOD will probably be considered as a request to re-open the claim.

The only way I see you remotely suceeding in this is if, as Rickb54 said, the VA rendered a decision back then and there was CUE within that decision. This isn't meant to be discouraging, but the senario with CUE would be very difficult to prove, as any CUE claim is!

Vike 17check 38 3,159 you will find more ,to what you state

[Guest anfrnkie]

Charleese,

Which date do you mean 1948 or 1958? Was one of those just a typo?

In any case it doesn't really matter. As Rickb54 said you can only file a NOD on a denial of benefits or on some other adverse action from VA, and that has to be done within one year of the adverse action. Did the VA deny his claim back then?

Does your husband have proof of a claim being submitted back then other than the notarized statement, such as letters from VA that acknowledge them receiving the claim, old C&P reports from the claim? I don't think just a notarized statement from a friend stating that he witnessed him filling out an application for benefits back then will do! You also stated that;

"his subjective testimony and friend's notarized statement Reasonable Doubt or Relative Equipose or both Reasonable Doubt and Relative Equipose should prevail in their decision to grant me an earlier effective date of 1958"

Relative Equipose means the evidence is in equal balance and, therefore, warrants the implementation of the Reasonable doubt rule. They are not seperate form one another.

I'm sure this isn't what you wanted to hear, but unless you have objective evidence that the VA received his claim back then, you're probably on the loosing end of this. As Rickb54 said, your recent NOD will probably be considered as a request to re-open the claim.

The only way I see you remotely suceeding in this is if, as Rickb54 said, the VA rendered a decision back then and there was CUE within that decision. This isn't meant to be discouraging, but the senario with CUE would be very difficult to prove, as any CUE claim is!

Vike 17

check out 38 3.159 you might be giving out the wrong answer

[Guest anfrnkie]

check out 38 3.159 you might be giving out the wrong answer

[Charleese]

Hi Everyone,

When my husband filed in 1958 he never heard from the VA in Tazewell, VA. The VA in Tazewell is no longer in existence, and all their files went to Cedar Bluffs in Virginia. Cedar Bluffs has sent him a letter stating that they do not have his file and that they purge their files every 5 years. My husband never abandoned this claim, he always let them know that he had filed in 1958. In April of 2006, the VA wrote him and acknowledged that they wanted information from him for his 1958 claim in which he sent them. On June 17, 2006 they denied this claim stating In the absence of convincing evidence showing that a claim was submitted at any time, prior to September 9, 1983, assignment of an earlier effective date, granting service connection for status post fracture left tibial tubercle with osteoarthritic changes and chronic chondromalacia, is denied”.

We Noded this decision on July 10, 2006. Before April 2006 VA would not pay any attention to the fact that he had not heard from VA in Tazewell or any VA in reference to his 1958 claim. It was only until in April he wrote them and told him that this claim was still opened and he had not abandoned this claim did the VA act by sending him a letter to supply information about this claim. By them sending him this letter was the first time he ever heard from a VA regarding his 1958 claim, even though he filed this claim in December of 1958.

They always had his service medical records as proof of his knee injury in 1954, and he always stated that when he got out of service in October of 1958, and could not reenlist because of his knee injury, that in December of 1958 he filed his application for compensation in Tazewell, VA but never heard from them or any VA concerning this application. His service medical records are well documented for his knee injury and he is rated at 60% because of it. That's why he stated in his NOD to them that with his objective medical evidence, his subjective testimony, and friend's notarized statement, the evidence demonstrates that he submitted his claim in December 1958. He also, told them that there was adequate evidence (objective medical records, subjective testimony, and notarized statement), for VA to reasonably conclude that it is as least as likely as not that there was a claim filed by him in December 1958.

As I stated above the VA in Tazewell no longer is in existence. They closed it down and their files went to VA in Cedar Bluffs, however Cedar Bluffs wrote him and said they do not have his file and that they purge files every 5 years. In essence they are saying that if they had his file it probably was purged.

He feels he should not be peanalize because the VA in Tazewell no longer exist and Cedar Bluffs may have purged his file.

Yes I meant 1958, not 1948. His service medical records (C&P) are from 1954 from Lackland Air Force Base Hospital. He had major surgery on that knee and was in the hospital for about six months. No he does not have a copy of this application. The NPRC has stated that his file was burned in fire, if he didn't write Lackland Hospital for his medical records and if they didn't have them he would not be service connected. A decision never was rendered on this claim until June 17, 2006.

Also, can someone tell me what website would I go into to check out 38 3.159.

I hope this answers all of your questions.

Thanks,

Charleese