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

[RockyA1911]

Well we will see how the EED pans out. I myself had formally filed a claim for compensation before I was discharged from the Marine Corps in Nov of 1976. At that time I had filed for two things, 1) Skull Defect, 4.5 x 4.5 cm and 2) Left Temporal Lobe Contusion. AND I do have copies of my claim form from back then along with the request for medical examination, neurologists C&P exam, etc. I was awarded only 10% for post concussion syndrome due to traumatic brain injury. Although the 4.5 x 4.5 cm skull loss was mentioned several times in the exam reports and the rating form there was no mention of denial or an award for the skull loss.

Interestingly enough on one of the VA medical forms one of the VA employees wrote in the request for examination to examine for Left Temporal Lobe Contusion only in the remarks area.

I have sent all that to the VA requesting EED of 26 Nov 1976 and a rating of 80% for skull loss w/brain hernia or at least 50% for Skull Loss, both inner and outer tables exceeding the size of a 50 cent piece and referenced the CFR paragraph. I also referenced the same thing in previous post from the CFR defining an Open Claim.

It's been 17 months since I filed all of it and I did have more C&Ps for Skull Loss and then the Neurologists did tests and opined I also have Post Traumatic Encephalopathy that is more likely than not from service connected head injury.

I've been told numerous times that my claim is at the rating board for over a year now and recently the VA stated they sent my claim out of state to another VARO for rating due to their heavy backlog.

We'll see if the VA honors the definition in the CFR of open claim and if so then I should get almost 30 years of retro compensation. BUT, I won't hold my breath.

[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

Hi Philip,

It is our understanding that when you do a NOD you have to state each item that you disagree on and tell why you disagree.

If we are wrong pleas somebody let us know.

Thanks!

[Philip Rogers]

Hi Philip,

It is our understanding that when you do a NOD you have to state each item that you disagree on and tell why you disagree.

If we are wrong pleas somebody let us know.

Thanks!

I have reviewed your posts and from what I gather, they have awarded him service connection @ 60% but not back to 1958. In that case I would file a NOD on the earlier date issue. I see the 1958 claim as still open and unresolved but you need some additional evidence. Check his complete c-file. Also the notorized witness statement should be an affidavit, as it carries more weight. A notarized statement just verifies that the person signing it is the person that signed it, not whether the statement was written by that person or whether it is true or not. jhmo

[Charleese]

I have reviewed your posts and from what I gather, they have awarded him service connection @ 60% but not back to 1958. In that case I would file a NOD on the earlier date issue. I see the 1958 claim as still open and unresolved but you need some additional evidence. Check his complete c-file. Also the notorized witness statement should be an affidavit, as it carries more weight. A notarized statement just verifies that the person signing it is the person that signed it, not whether the statement was written by that person or whether it is true or not. jhmo

Thanks Philip for your response,

Yes the notarized statement was done in the form of an Affidavit. Yes his 1958 claim is still open. The denial that they sent on June 17, 2006 he has did a NOD and sent it back to them. What they did in their decision was to try and say that a letter dated August 17, 2005 he wrote to the AMC in Washington, DC, requesting a copy of his C-file, and that he wanted to get this information by August 29, 2005 for an appeal that was coming due on September 5, 2005, they want to say that this establishes his claim for an earrlier effective date. He let them know in his NOD that he disagreed with August 17th date and that December 1958 was his earlier effective date. He also let them know that both September 9, 1983 and August 17th were not his original dates and were not to be use to reopen his 1958 claim, because there never was a decision rendered for his 1958 claim which make it still open and unresolved, and therefore, they cannot use August 17th date to establish his claim. Furthermore, when does a request for a copy of your complete c-file constitute the establishment of a claim. We just can't understand that. There is nothing in this letter which states he is seeking a benefit. All of this he pointed out in his NOD. Has this happen to anybody on hadit before if so please respond.

At this time he does not have any additional evidence. In NOD he asked that they use Section 3.159 to help in developing his claim. With the VA in Tazewell no longer in existence, and Cedar Bluffs VA purging his records all he has is his objective medical evidence, his subjective testimony, and his friend's notarized statement. We do know that many of cases have been won on objective medical evidence and subjective testimony alone. He figures with his friend's notarized statement it should help to win his claim.

Please if you or anyone reading this post know of any other additonal information or resources that he can use, please post information.

Thanks!

Charleese

[Berta]

Charleese-I am sure you already tried this but- if not-

I think either the Salem VARO or the Roanoke VARO and/or VAMCs took over Tazewell-

This is Visn # 6-have you written directly to Visn # 6 headquarters?

Or have you sent the VA an inquery at their web site for some direction here as to where the Tazewell records are now ?

There were only 10 vets and one widow with Tazewell mentioned in their BVA claims but I found no claim where the records were not found from Tazewell. Then again nothing there back to 1958.

When he filed the claim in 1958-did he do this in person?

Is there any vet rep who might have helped him file it?

[Charleese]

Charleese-I am sure you already tried this but- if not-

I think either the Salem VARO or the Roanoke VARO and/or VAMCs took over Tazewell-

This is Visn # 6-have you written directly to Visn # 6 headquarters?

Or have you sent the VA an inquery at their web site for some direction here as to where the Tazewell records are now ?

There were only 10 vets and one widow with Tazewell mentioned in their BVA claims but I found no claim where the records were not found from Tazewell. Then again nothing there back to 1958.

When he filed the claim in 1958-did he do this in person?

Is there any vet rep who might have helped him file it?

Hi Berta,

He called and spoke with both VAs in Salem and Roanoke and both stated that Tazewell's files went to Cedar Bluffs. No he did not send VA an inquery at their web site for some direction. I will get him to do that this afternoon. Thanks!

He has learned that the VA in Tazewell has been out of existence for 35 to 40 years or more. Yes Berta I did read those BVA claims and even though they have the word Tazewell in them, only his claim referrs to VA in Tazewell, Virginia. The others mention Tazewell but they are: (1) for Virginia Dept. of Highways, in Tazewell, RO Roanoke; (2) Treated at Tazewell Family Physicians in Tazewell, RO Roanoke; (3) New Tazewell Family Practice Center in New Tazewell, Kentucky, RO Louisville, Kentucky; (4) PTSD Group with Glenn Eagle in Richlands and was followed at Tazewell Satellite for Medical problems. Tazewell Satellite he was told was a part of Glenn Eagle which is not associated with any VA; (5) 2 were with Tazewell Community Center, in Huntington, West Virginia, RO Huntington, West Virginia; (6) 1 with Tazewell Community Center in Roanoke; (7) Claiborne County Hospital and Tri-Sate Radiology in Tazewell, Tennessee, RO Nashville, Tennessee (8) Tazewell Tennessee. As you can see none of them relates to the VA in Tazewell, Virginia.

Yes he did file in person and his best friend at that time did a notarized statement because he was with him when he filed and witness him submitting his claim to VA Representative.

Thanks for your reply.

Charleese