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My Nod For Forum Review.


carlie

Question

Here is what I will be sending on Monday. i want to have the entire weekend for you guys to opine.

TO: Department of Veterans Affairs

This is a Notice of Disagreement with your rating decision dated 11-1-12 which denied my claim for bilateral shoulder, bilateral knee, and lung condition . I request my claim be afforded a de Novo review by a Decision Review Officer and a Statement of Case (SOC) be prepared and forwarded to me. I also hereby request all copies of my Service Medical Records to be used for review by my private physician.

Thank you.

Disgruntled Vet. (ok i might put my real name here lol)

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Spc,

Do you already have what is needed to overcome the reasons for denial/s ?

the only thing that i am missing for my IMO is my smr's. I have all medical records from 2003 when I started using the North Texas VA medical center till now. I need the smr's so that my doctor can make the connection. I just dont want to run out of time. the decision was made on November 1st 2012.

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Carlie is right. When I do a NOD, I "argue my case", and cite supporting evidence. I dont "wait" and send that evidence in "later". I also dont count on my VSO to "argue my case" either. (The VSO probably never read my medical report, so how would he know why I deserve a higher rating) Why? Because the VA LOVESSSSS TO LOSE your EVIDENCE and then deny saying they never received your evidence. Documenting, in your NOD, that you sent the evidence makes it difficult for the VA to lose your evidence and get away with it, because the judge will read your NOD.

This way, when I have everything in the NOD, by acknowledging receipt of the NOD, they cant later say, "We did not receive your reasons supporting your case" because they acknowldged receipt of those when they send you a notice they recieved your NOD. YOU HAVE GOT TO ASSUME THE VA WILL LOSE YOUR EVIDENCE AND IF THEY DONT< SO much the better.

Make sure you REFUTE the VARO "reasons and bases" for decision.

Example:

I disagree with the RO decision dated (make sure you put the date of the decision disputed!) Jan. 1, 2012 and request a DRO review as to the following issues:

1. Bilateral Shoulder. Contrary to the Regional office decision, Doctor Ima Duckworth, VAMC Roanoke Virginia physician stated on 2/2/12, "The Veterans shoulder issue is at least as likely as not due to the ....injury received while in military service. Further, Dr. Quack said on 3/2/12, "The shoulder injury in the right shoulder has caused a similar injury to the left shoulder".. The physicians report is enclosed for your inspection.

2. Lung condition. Dr. Doolittle, the Veterans VA physician stated on 1/3/2011, "............", which is also in his report. This is in conflict with the RO decision.

3. Bilateral Knee. Dr. Kirk Kevorkian, VAMC physician stated, "........." which directly refutes the regional office decision in its "reasons and bases" for denial.

Signed...

Ima tickedoffvettoo.

Enclosures:

1. Dr. Duckworth report dated 2/2/12

2. Dr. Doolittle report dated 1/3/2011

3. Dr. Kevorkian report dated 1/11/99.

Edited by broncovet (see edit history)
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Carlie is right. When I do a NOD, I "argue my case", and cite supporting evidence. I dont "wait" and send that evidence in "later". I also dont count on my VSO to "argue my case" either. (The VSO probably never read my medical report, so how would he know why I deserve a higher rating) Why? Because the VA LOVESSSSS TO LOSE your EVIDENCE and then deny saying they never received your evidence. Documenting, in your NOD, that you sent the evidence makes it difficult for the VA to lose your evidence and get away with it, because the judge will read your NOD.

This way, when I have everything in the NOD, by acknowledging receipt of the NOD, they cant later say, "We did not receive your reasons supporting your case" because they acknowldged receipt of those when they send you a notice they recieved your NOD. YOU HAVE GOT TO ASSUME THE VA WILL LOSE YOUR EVIDENCE AND IF THEY DONT< SO much the better.

Make sure you REFUTE the VARO "reasons and bases" for decision.

Example:

I disagree with the RO decision dated (make sure you put the date of the decision disputed!) Jan. 1, 2012 and request a DRO review as to the following issues:

1. Bilateral Shoulder. Contrary to the Regional office decision, Doctor Ima Duckworth, VAMC Roanoke Virginia physician stated on 2/2/12, "The Veterans shoulder issue is at least as likely as not due to the ....injury received while in military service. Further, Dr. Quack said on 3/2/12, "The shoulder injury in the right shoulder has caused a similar injury to the left shoulder".. The physicians report is enclosed for your inspection.

2. Lung condition. Dr. Doolittle, the Veterans VA physician stated on 1/3/2011, "............", which is also in his report. This is in conflict with the RO decision.

3. Bilateral Knee. Dr. Kirk Kevorkian, VAMC physician stated, "........." which directly refutes the regional office decision in its "reasons and bases" for denial.

Signed...

Ima tickedoffvettoo.

Enclosures:

1. Dr. Duckworth report dated 2/2/12

2. Dr. Doolittle report dated 1/3/2011

3. Dr. Kevorkian report dated 1/11/99.

I agree wholeheartedly with both of you. thanks to Rdawg I now am conditioned to expect that VA will attempt to deny anything that I send in without appropriate background. Here is my dilemma. I was denied on November 1st and want to be sure of my deadlines. Can you please advise me the time frames for a NOD and appeal. i want to keep my effective date. I get to speak with my PCP the middle of January and want to have everything for him to provide me a IMO. I really do believe this will be a slam-dunk but ONLY if i can get a copy of my SMR's that I have requested and not received (Nov 2nd 2012. )

I used to be sad that I was denied. I have been looking at BVA cases for 2011 and see that the C&P examiner (Darren Hightower PA since 2011) left himself open to be refuted for speculation. I have a renewed sense of don't give up and I don't see myself giving up. The Military screwed me over by making me go 3 years with the issues with my shoulder ( I should have been medically discharged, or not even allowed to enter) but they wont screw me over on my benefits.

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VBA 101 - Claims - NO CLAIM ISSUE SHOULD BE CONSIDERED

A SLAM DUNK.

I would not count on receiving a complete copy of your SMR's

in less than 3 months, at minimum, especially since it holiday time.

Can you post the Reasons and Bases Section from the denied issue/s ?

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don't take it personnally that the military let you go for three years with your condition.

The military has a mission.

The people who serve are expendable assets like tanks and bullets.

This is why the VA exists, to take care of those who served under such a physically and mentally distructive environment.

With that said, you are on the correct track to provide the VA with the required medical evidence for them to be able to grant service connection on your conditions.

You have one year to file a NOD or submit new evidence. There are differing opinions on this board as to which way to go. My opinion is based on my experience.

Here it is for what its worth. The VA does not like NODs. They consider them to be adversarial. Like I said you are on the correct track. Your next step depends on the strength of the IMO you are able to obtain. If it is a strong IMO, written by someone who understands VA law and language, and it is able to refute the negative C&P then I would submit it and ask for a reconsideration based on the newly submitted evidence. I would not even mention the NOD. Once they reconsider your claim then your clock starts over. You will have another year to file a NOD from the second decision if it is denied. This also preserves your earlier effective date of the original claim (good retro).

Some others on the board say go straight to appeals because you are going to be there anyway so get started sooner than later. But if you submit new evidence with the NOD and within a year of the decision then the VA will be required to evaluate that evidence before they issue a statement of case. So why not just ask for a reconsideration and try not to piss them off(here come the comments).

One note of warning. Dr. Bash can take a long time to complete his IME/IMO. If you try your new private Dr first and it does not work out you may not have time for Dr Bash before your year runs out. If that happens then you can still ask for them to reopen your claim based on new evidence but you will lose your effective date of the original claim. The effictive date would be the reopen date.

Good luck, I hope this helps

Edited by rdawg (see edit history)
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Here it is for what its worth. The VA does not like NODs. They consider them to be adversarial. Like I said you are on the correct track. Your next step depends on the strength of the IMO you are able to obtain. If it is a strong IMO, written by someone who understands VA law and language, and it is able to refute the negative C&P then I would submit it and ask for a reconsideration based on the newly submitted evidence. I would not even mention the NOD. Once they reconsider your claim then your clock starts over. You will have another year to file a NOD from the second decision if it is denied. This also preserves your earlier effective date of the original claim (good retro).

I would have to strongly disagree with some of the above.

Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.

Submitting additional evidence and requesting the claim to be reconsidered,

does not stop the NOD clock or extend the one year period that the claimant is afforded,

to submit their NOD.

Perhaps others will chime in on this.

http://www.ecfr.gov/....0.1.1.5.4.35.1

20.302 Rule 302. Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case.

(a) Notice of Disagreement.

Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final.

The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(Authority: 38 U.S.C. 7105(b)(1))

(b) Substantive Appeal

(1) General. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.

The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(2) Special rule in certain cases where additional evidence is submitted.

Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with § 19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a Substantive Appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period.

(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))

© Response to Supplemental Statement of the Case.

Where a Supplemental Statement of the Case is furnished, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.

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http://www.gpo.gov/fdsys/pkg/CFR-2002-title38-vol1/pdf/CFR-2002-title38-vol1-sec3-400.pdf

(h) Difference of opinion (§3.105).

(1) As to decisions not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable.

(2) As to decisions which have become final (by appellate decision or failure to timely initiate and perfect an appeal) prior to receipt of an application for reconsideration or to reopen, the date of receipt of such application or the date entitlement arose, whichever is later.

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rdawg,

I have read your reply and continue to have reservations.

I'm still in hopes others chime in on whether that one year NOD clock

is stopped or extended, due to a request from the claimant,

for reconsideration at the VARO level.

I'd also like to see some case law on difference of opinion as applied to effective date

versus medical opinion/ N&M evidence.

Hope this makes sense.

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what we decided:

Description:

Right shoulder rotator cuff tendonitis, glenohumeral joint arthritis , and labral tear

Denial Reason:

We do not find a link between

Right shoulder toator cuff tendonitis, glenohumeral joint arthritis , and labral tear

The veidence does not show that:

We do not find a link between

Right shoulder toator cuff tendonitis, glenohumeral joint arthritis , and labral tear developed to a compensatable degree within the specified time period after release to qualify for presumption.

Your Va medical opinion dated (!!!!!!) found no link between your diagnosed medical condition and military service.

SMR's showed complaintsafter a tank rollover but mild montusion was listed. There were no aditional complaints, diagnosis, or treatment related to the shoulder while on active duty. Upon examination, diagnosis of your right shoulder toator cuff tendonitis, glenohumeral joint arthritis , and labral tear were listed and the examine opined that your disability was not likely realted to the contusion noted during military service. It was noted that an acute episode of shoulder contusion does not represent a significant enough trauma or pattern of trauma to result in your current condition.

Explanation:

The VA medical opinion fromthe Dallas VA medical Center dated () found no link. Your SMR's do not contain complaints, treatment, or diagnosis.

Whew. Scanner was down. Carpel Tunnel now VA..

Now what it fails to mention is. I happened to get the REAl C&P examiners "opinion". I will put that on tomorrow.

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Carlie...

The issue you brought up about N and M evidence is addressed here. Since this has been done by the NVLSP, I consider it to be a fact. Facts of law, however, can change with new CAVC Federal Court or Supreme court decisions.

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

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bronco,

That's a good link with some great case law for reference.

My disagreement is in regards to (as I posted),

"Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.

Submitting additional evidence and requesting the claim to be reconsidered,

does not stop the NOD clock or extend the one year period that the claimant is afforded,

to submit their NOD."

and

"I'm still in hopes others chime in on whether that one year NOD clock

is stopped or extended, due to a request from the claimant,

for reconsideration at the VARO level."

I do not see that submitting N&M with a request for reconsideration,

still does not stop the NOD clock on the prior decision.

If the "reconsideration" decision remains a denial, and a form 9 is submitted

that continues the appeal, I feel BVA will come back with, a NOD was not submitted

in a timely fashion on the original decision that denied.

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Carlie

Read pages 4 and 5 of the link below. In this example the Veteran sent in new evidence after 360 days, and the claim Did NOT become final after a year.

I think I remember reading elsewhere where this new evidence, submitted in the appeal period, "tolls" the one year appeal period until the VARO at least responds to the request to reopen due to N and M evidence.

In other words, if the Veteran submits New evidence within the year appeal period, he is, in effect, disputing the decision by adding more evidence, and that has a similar effect as a NOD but with a DRO review.

Also see 38 CFR 3.156 (a). The claim remains "open" after the Veteran submits new evidence in the appeal period and does not necessarily become final in the one year appeal period.

I will add that I think the VA wants us to think that a claim ALWAYS becomes final after a year, but there is, at a minimum, this exception. The VA does not want us to think that will keep the claim open..they would rather we just drop our appeal.

Its hard to wrap your head around...I always believed, like you, that, no matter what, you dont file a nod in a year its final. Not necessarily so, says the NVLSP, but you may not get the "board" to recognize this and have to take it up at the CAVC level.

Edited by broncovet (see edit history)
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Carlie

Read pages 4 and 5 of the link below. In this example the Veteran sent in new evidence after 360 days, and the claim Did NOT become final after a year.

I think I remember reading elsewhere where this new evidence, submitted in the appeal period, "tolls" the one year appeal period until the VARO at least responds to the request to reopen due to N and M evidence.

In other words, if the Veteran submits New evidence within the year appeal period, he is, in effect, disputing the decision by adding more evidence, and that has a similar effect as a NOD but with a DRO review.

Also see 38 CFR 3.156 (a). The claim remains "open" after the Veteran submits new evidence in the appeal period and does not necessarily become final in the one year appeal period.

I will add that I think the VA wants us to think that a claim ALWAYS becomes final after a year, but there is, at a minimum, this exception. The VA does not want us to think that will keep the claim open..they would rather we just drop our appeal.

Its hard to wrap your head around...I always believed, like you, that, no matter what, you dont file a nod in a year its final. Not necessarily so, says the NVLSP, but you may not get the "board" to recognize this and have to take it up at the CAVC level.

bronco,

1)

Yes, I read it, but that situation nor this one in this topic is relative to 3.156a,

3.156b would be for application.

3.156 (a) relates to submitting N&M evidence on a Finally Adjudicated Claim in order to re-open

the claim.

3.156 (b) relates to submitting N&M evidence on a Pending Claim,

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.

2) In relation to this topic, the laws/regs and M21-1MR instruction that pertain to reconsideration

are not inclusive at the VARO level - sure, a claimant can request the VARO to reconsider, but this

action is not supported by any USC, CFR or M21-1MR. If the VARO does not correctly acknowledge

this request, and takes it as a new claim, which I have found in several BVA decisions -

that original effective date may well be out of gas.

Here are the claimants pitfalls for consideration.

(1) if no new and material evidence is submitted within one year than technically the prior rating decision is final regardless of the supposed request for reconsideration;

(2) even if certain evidence is submitted, if the RO does not consider the evidence new and material, then again technically the rating decision is final; and

(3) you are relying on the RO to notice that there was a prior rating decision and new and material evidence was filed within a year of the prior rating decision.

I continue to stand on filing a NOD, well within the one year time period allowed.

I feel doing otherwise is poor planning on the part of the claimant.

After all - many times the struggle is difficult enough as it is - why take such an obvious risk

on the earlier effective date in leaving it to chance by simply not submitting the NOD.

The appeal process takes enough time and toll on claimants already.

I can surely see a claimant utilizing 3.156 (b) after the fact if necessary and available, but why

would one make that mistake from the get go and take such an unnecessary risk.

JMHO

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I'm not talking about new and material evidence to reopen an already final claim. That is not SPCDearman's situation.

Once you receive a decision on a claim you have up to one year to submit new evidence. The VA must consider this new evidence, even if it is not new (dupliticave) or material. The one year appeal and new evidence period starts over again once another decision has been made.

His situation is mine almost exactly. I eventually withdrew my nod and asked for reconsideration based on an IMO from Bash. The year appeal period came and went while they were evaluating my IMO. They awarded SC and I kept my mar 06 effective date.

Dearman has one year from nov 1 2012 to submit new evidence or file a NOD.

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I'm not talking about new and material evidence to reopen an already final claim. That is not SPCDearman's situation.

I am in agreement with the above, and this is the exact situation that is applicable to 38 CFR - 3.156 (b)

3.156 New and material evidence.

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)

Once you receive a decision on a claim you have up to one year to submit new evidence. The VA must consider this new evidence, even if it is not new (dupliticave) or material.

If this "new evidence" you submit is cumulative evidence or evidence already considered in

the prior decision - what USC or CFR supports your theory that

"The VA must consider this new evidence, even if it is not new (dupliticave) or material."?

The evidence must be determined by VA to be both new & material.

A claimant clearly, is afforded one year to submit a NOD.

The one year appeal and new evidence period starts over again once another decision has been made.

The above is correct, if the decision becomes final, N&M evidence will be required to reopen

the claim again, and assignment of effective date will be open to errors.

His situation is mine almost exactly. I eventually withdrew my nod and asked for reconsideration based on an IMO from Bash. The year appeal period came and went while they were evaluating my IMO. They awarded SC and I kept my mar 06 effective date.

I understand your situation and adjudicative actions stated above.

What is of importance is that there are no USC laws, 38 CFR regs or M21-1MR instruction

that addresses a request for reconsideration at the VARO level.

In other words the VARO does not have to accept a claim for reconsideration as there are

no must do process for it, at the VARO level. The VARO does not have to accept a request or

application of reconsideration from a claimant.

3.400 General

(h) Difference of opinion3.105 ).

(1) As to decisions not final prior to receipt of an application for reconsideration or to reopen,

or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable.

Your VARO must have considered the IMO from Dr. Bash to be both new and material evidence

and or considered this N&M evidence (the IMO) along with the previous evidence of record

contained in the prior decision inorder to support the new decision.

Being that you submitted this evidence prior to the earlier decision becoming final, you continually

prosecuted your claim without failure - that's why the "mar 06 effective date" was warranted.

3.156 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."

Of course the reopened portion of the reg above does not apply to you or SpcDearman.

Dearman has one year from nov 1 2012 to submit new evidence or file a NOD.

The one year to file a NOD is certainly correct and if done in a timely fashion,should preserve the effective date,

which will certainly help limit the possibility of error in the eventual assignment of the effective date.

The claimant is allowed to submit additional evidence with the NOD and all the way up to when a

decision is made.

Why would one not want to ensure the preservation of that effective date being locked in ?

The "has one year from nov 1 2012 to submit new evidence" offers more room for error

in the preservation of the effective date.

I posted several pitfalls and reasons for possible errors in the assignment of effective date,

this type of action on the claim, will leave the claimant vulnerable to.

It is in the best interest of a claimant to keep the VBA's margin for error, as low and tight

as possible.

BTW - I think this topic and thread is great debate in hashing out the application of regs.

JMHO - carlie

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Carlie

I do not dispute the best way is to file a NOD within a year. Period. However, if you did not, but you did file new and material evidence, a claimant can use that to secure an earlier effective date, as per the NVLSP's "common effective date errors" link, below.

There is no doubt the VARO and probably the Board will mess this up and you will have to take it to the CAVC to get it straightened out. So, the best thing is, as you say, to submit the NOD anyway. However, if you have an unappealed claim and YOU SUBMITTED NEW AND MATERIAL EVIDENCE prior to the expiration of the one year period, then, by all means, use the NVLSP's advice to secure an EED.

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There is a lengthy and very detailed discussion of the "pending claim doctrine" here: (New and material evidence can "keep the claim pending", as can a timely filed NOD)

http://www.bva.va.gov/docs/VLR_VOL2/Copy5--JohnFussellandJonathanHager.pdf

This is well written, by attorney's, and supported by case law. However, there can obviously be case law after the article was written that "changed" some or even all of this. VA law is in constant flux...being altered each time there is a new precedential CAVC or Federal Circuit decision.

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In the "Pending claims doctrine" article, I cited below, they say it this way:

II. OVERCOMING FINALITY

When a VA Regional Office (RO) renders a decision that is

not timely appealed by a veteran, that decision becomes final.

18

This

is important for determining the effective date when a subsequent

THE EVOLUTION OF THE PENDING CLAIM DOCTRINE

5

claim for the benefit that has been denied is granted. Once there is

a final RO denial of a claim for service connection, there are only

two ways to overcome this finality.

First, a claimant may seek to have the claim readjudicated by

submitting a request to reopen the claim based on new and material

evidence; when such new and material evidence is received, a claim

must be “reopened” by VA and readjudicated on a de novo basis.

19

However, when granting a petition to reopen, and granting the

benefit after de novo consideration, VA cannot assign an effective

date earlier than the date of receipt of the petition to reopen.

20

Second, a claimant may seek revision of a final RO deci

end of article quote.

.........and they go into "CUE" as the second exception.

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I appreciate the debate but you guys took a load off. heck, I thought it had to be filed within 90 days lol. Whew... I am at work for a bit now but when I get home I want to copy my C&P medical opinion that i received. It made me laugh hysterically.

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