Establishing Claim

[Charleese]

Hi everyone again,

As you know in the topic Options I explained about my husband's 1958 claim for an EED. Well in looking over their denial under Evidence they states the following:

Your letter of August 17, 2005, establishing your claim for an earlier effective date for your service connected left knee disability.

Well it turns out that his August 17, 2005 letter was to the Appeals Management Center in Washington, DC requesting that a complete copy of his claims folder be sent to him by August 29, 2005 for his September 5th appeal. He goes on to state in letter that he would like to receive documents before September 5th to use in Appeal.

When did a request for a copy of your claims folder become an establishment of a claim for an earlier effective date? Even if they were to try and use this letter for an informal claim, they couldn't. Under §3.155 Informal claims it states:

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

No where in his letter does he state or identify a benefit sought.

Even though he sent them his NOD on July 10th (his 60 days for NOD doesn't end until August 17th.), we are wondering whether we should write them and ask that they add his disagreement on August 17th date, to his July 10th NOD. The reason why we disagree with August 17th date is because he originally filed claim in December 1958. December 1958 is the date of his original claim not August 17th. As you know his 1958 claim cannot be found, and because VA never issued a final decision on it, 1958 claim is still pending or open whichever you want to use. We want to preserve the December 1958 date and not August 17, 2005.

Please let me know whether he should add this to his July 10th NOD.

For those of you who may be confused by the above, please read topic Options.

Thanks!

Charleese

[Vike17]

Charleese,

To try and help you, I went back to the other post to try and piece this together.

"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”

Ok, when the VA rated his claim for his knee with an effective date of Septmber 9, 1983, did the VA state this was an re-opened claim on that decsion? If so, that means the VA had to of denied the claim sometime in the past, and you would have had to of submitted "new and Material" evidence to re-open the claim. also, if the VA denied the claim sometime before 1983 and you did not appeal that decision within the one year time frame, then I don't think there is a basis for an earlier effective date, unless as previously posted, you can prove CUE on that previous denial! The rating decision of 1983 is very essential in this case. What was the action in 1983 that your husband did to warrent service-connection; did he submit a 21-526, was he hospitalized in a VAMC ect...?

What happended between 1983 and April 2006. How come you waited 23 years to ask VA about the effective date. Why didn't you address this back in 1983 when they rated your husbands knee?

Like I said in the other post, if you don't have any evidence, such as a copy of the disability application from 1958 or a letter from VA shortly thereafter, or can prove CUE, then you are probably on the loosing end of this.

I'm trying to be discouraging, but something doesn't add up here!

Vike 17

Edited July 30, 2006 by Vike17

[Charleese]

Hi everyone again,

As you know in the topic Options I explained about my husband's 1958 claim for an EED. Well in looking over their denial under Evidence they states the following:

Your letter of August 17, 2005, establishing your claim for an earlier effective date for your service connected left knee disability.

Well it turns out that his August 17, 2005 letter was to the Appeals Management Center in Washington, DC requesting that a complete copy of his claims folder be sent to him by August 29, 2005 for his September 5th appeal. He goes on to state in letter that he would like to receive documents before September 5th to use in Appeal.

When did a request for a copy of your claims folder become an establishment of a claim for an earlier effective date? Even if they were to try and use this letter for an informal claim, they couldn't. Under §3.155 Informal claims it states:

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized

representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

No where in his letter does he state or identify a benefit sought.

Even though he sent them his NOD on July 10th (his 60 days for NOD doesn't end until August 17th.), we are wondering whether we should write them and ask that they add his disagreement on August 17th date, to his July 10th NOD. The reason why we disagree with August 17th date is because he originally filed claim in December 1958. December 1958 is the date of his original claim not August 17th. As you know his 1958 claim cannot be found, and because VA never issued a final decision on it, 1958 claim is still pending or open whichever you want to use. We want to preserve the December 1958 date and not August 17, 2005.

Please let me know whether he should add this to his July 10th NOD.

For those of you who may be confused by the above, please read topic Options.

Thanks!

Charleese

Hi Vike 17 thanks for your reply.

He let Connecticut VA in 1983 know that hie had filed a 1958 claim in Tazewell, but never heard from them, and they Connecticut ignored that and gave him an application to fill out again. This 1983 application claim they are saying is his original claim.

As I stated before his 1958 claim was still open, because no decision was ever made on it, nor was he ever contacted or sent papers on it. My post in Options explains how many times he has contacted Tazewell in reference to this, but he could not catch up with the Representative to find out about his claim. Even when he moved and left forwarding addresses, he would still call Tazewell, to try and see what the status of this claim was. Now the VA in Tazewell no longer exist and they transfer the files to the Cedar Bluffs VA. That VA has written and said if they had his files that it would of been purged because they purge their files every 5 years.

Please read Options post about times he tried contacting that VA. Also as I stated there from 1983 up until 2006 he kept complaining to Connecticut VA about his 1958 claim still being open. When he NODED each time he let then know about his 1958 claim still being open. It wasn't until he filed a CUE claim about a 1985 decision and sent it to the Appeals Management Team, stating that he had not abandoned this claim, the Appeals Management Team remanded it back to RO in 2005 for them to develop his 1958 claim.

No they did not deny his claim in the past and no decision was ever made on 1958 claim. Therefore, a CUE claim cannot be done. Please read complete post on Options and it will answer the rest of your questions.

Also, please answer my question about whether he should add on to his NOD because of August 17, 2006 date.

Thanks!

Charleese

[Berta]

I haven't read the whole case but this clarifies an "Open claim":

"The Board of Veterans' Appeals (Board) first notes that the

veteran filed a claim for hearing loss in both ears in March

1970. The regional office (RO) issued a rating decision in

September 1970, which granted service connection for partial

deafness of the left ear, but failed to address the veteran's

claim for service connection for hearing loss in the right

ear. Therefore, the original claim for service connection

for right ear hearing loss remains an open claim. "

from:http://www.va.gov/vetapp01/files01/0101387.txt

The remand is based on the still-open right ear hearing loss claim- however-since the claimanat never received a decision, the Board could not take this as part of the appellate review. Fortunately the veteran raised this issue on appeal and if the remand reveals the appropriate medical evidence the EED would change.

(my take on it-any thoughts?)

[Philip Rogers]

Hi Vike 17 thanks for your reply.

He let Connecticut VA in 1983 know that hie had filed a 1958 claim in Tazewell, but never heard from them, and they Connecticut ignored that and gave him an application to fill out again. This 1983 application claim they are saying is his original claim.

As I stated before his 1958 claim was still open, because no decision was ever made on it, nor was he ever contacted or sent papers on it. My post in Options explains how many times he has contacted Tazewell in reference to this, but he could not catch up with the Representative to find out about his claim. Even when he moved and left forwarding addresses, he would still call Tazewell, to try and see what the status of this claim was. Now the VA in Tazewell no longer exist and they transfer the files to the Cedar Bluffs VA. That VA has written and said if they had his files that it would of been purged because they purge their files every 5 years.

Please read Options post about times he tried contacting that VA. Also as I stated there from 1983 up until 2006 he kept complaining to Connecticut VA about his 1958 claim still being open. When he NODED each time he let then know about his 1958 claim still being open. It wasn't until he filed a CUE claim about a 1985 decision and sent it to the Appeals Management Team, stating that he had not abandoned this claim, the Appeals Management Team remanded it back to RO in 2005 for them to develop his 1958 claim.

No they did not deny his claim in the past and no decision was ever made on 1958 claim. Therefore, a CUE claim cannot be done. Please read complete post on Options and it will answer the rest of your questions.

Also, please answer my question about whether he should add on to his NOD because of August 17, 2006 date.

Thanks!

Charleese

I don't see the need to add it to his NOD, as it appears to be covered. The original claim is still open but as a precaution, if they're denying in any way the existance of a 1958 claim, then I would submit a NOD on that issue. jmho

[Vike17]

Charleese,

I did read both of your post numerous times.

The bottom line is if there isn't any proof that your husband filed a claim in 1958, such as a copy of the original disability application, letters from VA there after, or even a copy of the C&P exam, there is little chance you'll succed.

Berta's BVA case she listed is quite different. There is a record of a claim(s) being filed.

Vike 17

[Charleese]

Charleese,

I did read both of your post numerous times.

The bottom line is if there isn't any proof that your husband filed a claim in 1958, such as a copy of the original disability application, letters from VA there after, or even a copy of the C&P exam, there is little chance you'll succed.

Berta's BVA case she listed is quite different. There is a record of a claim(s) being filed.

Vike 17

Hi once again Vike17

I know you say "I'm trying to be discouraging, etc.", however my husband refuses to be discouraged. We both feel that it is not his fault that his application that he submitted to the VA in Tazewell, can not be found because Tazewell VA no longer exist. We are wondering how many files from Tazewell that can't be found. Also, we feel that it is up to the VA to tell us what happen to his appliction or where application is, and they have yet to tell him. He has proof that he submitted claim (his subjective testimony and friend's notarized statement witnessing him submitting application. They also, have his medicl records as objective medical evidence). Many cases have been won on subjective testimony and objective medical evidence alone. Now with this notarized statement we feel we can win.

We are strong believers in the man above and until he tells him differently, my husband will continue to forge on with this claim.

Thanks!