My Nod For Forum Review.

[SpcDearman]

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)

[SpcDearman]

in SPCDEARMANs case the claim was submitted after the disibilty occurred. His effective date will be the date he submitted.

The site must have been down this morning. I was snowed in and wanted to post the C&P examiners opinion for you guys. Give me about 6 hours (still at work) and i will post it. It is very good reading.

[broncovet]

When a Veteran reopens the claim, due to N and M evidence, this "tolls" the 1 year appealate review period until such time the VARO issues a SOC. The claim "does not" become final in one year if the Veteran has submitted N and M evidence: See the below link, especially the example:

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

[carlie]

If the new evidence submitted during the appeal period,

does not result in a revision of the prior decision

and a timely NOD is not of record

prior to the end of the appeal period,

and the claim remains denied,

with the exception of a CUE being granted,

the earlier effective date will go down the drain.

Also, for clarity,

I believe a claimant can not have both an appeal or NOD

at the same time as a reopened claim,

on the same thing, in the works at the same time,

it's one or the other, but not both at the same time.

[SpcDearman]

Ok, here is the medical opinion to "support" the denial:

Opinion: The requested opinion is whether the veterans claimed left knee and bilateral shoulder pain are related to the tank rollover in 11/1994.

The ER note from the event indicate he had mild contusions and the "exam" essentially was normal. There were no subsequent complaints of shoulder pain after that single event until the time of his discharge in July 1995. Va CPRS notes 2004 until now dont make mention of shoulder pain, although he was seen primary and a review of symptoms was asked to which no complaint of shoulder pain was made. (?) I dont get that.

The veteran tells the examiner that he has had pain since 1992. Despite this he didnt mention shoulder pain as a symptom until 2011 despite multiple clinical visits every year between 2004-2010. His current condition likely represents chronic shoulder strains and microtrauma although he does not provide an occupational history that would predispose him to these issues. He reported to his examiner that he has only worked in the office place since leaving the military since he couldnt work with his shoulders. A review of his MENTAL HEALTH records shows that he reported working for a car wash in 2005. (I worked and received one paycheck because I couldnt handle it anymore.)

The acute episode of shoulder contusion does nto represent a significant enought trauma or pattern of trauma to result in his current shoulder conditions.

<Insert least as likely crap statement here>

Same for knee claim.

I do think that the RO wanted to know if a pre-existing injury could have been made worse by it but i need to dig that out of the many pages. I will post more later.

[FormerMember]

Carlie, you nailed it. Very good description. The CAVC often refers to a claim as living thing. It has a logical birth date, and if properly and timely appealed, it continues in what is described as a "claim stream". If uninterrupted it proceeds to a logical conclusion. Each appeal, remand and adjudication occurs in a successive order. If a NOD is ignored or nothing happens after N&M evidence is submitted, the precepts of § 3.156 (b) and §19.31 ensue. Unless it is subsumed by a later BVA or CAVC adjudication, it (the claim) is still viable. This isn't CUE. It isn't magic either. If you fail to appeal your denial within a year of issuance, that part of your claim stream dies. Any future reopening of the same claim simply is a continuation of the original claim stream but with an effective date that reflects the latest reopening. It is not permitted to have a claim in appellate status unless and until it is adjudicated by a lower Agency Of Jurisdiction. Since there is no decision to appeal with, whether it be a grant for increase or initial claim, the claim cannot exist in two places at the same time. This is why, if you choose to ask the Board to reconsider a claim within the magic 120 days of the denial, you cannot simultaneously file a Notice of Appeal with the CAVC to hold your place in line. It's either one or the other but not both.You may file the MFR, and and thence denied, proceed to flle the NOA within the statutory 120 days with the Court.

It would appear SPCDearman has now discovered how good the VA's record keeping is and how they do occasionally read the STRs. As usual, they have taken the facts and artfully misconstrued them in such a way as to ensure the claim is denied based on the record and what he said. Everything you say (or don't) will be used against you. Notice the use of no evidence is negative evidence?(Despite this he didnt mention shoulder pain as a symptom until 2011 despite multiple clinical visits) Any job you had that you failed to mention is a blow to your credibility here. Any history you fail to reveal is ammunition used against you and proves you cannot be trusted to tell the truth. This is why I advocate mastering these tactics and preparing a good offense that keeps it in context before you get there. Simply sitting in a trench in a defensive posture is not advisable. You, sir, have your work cut out for you. Email me at asknod@gmail.com and I'll gladly send you a free copy of my book. It may not guarantee a win, but it will darn sure show you how not to lose. Thirty two other Vets think it works like a charm and most are now at IU or P&T. We all want you to win.

[Berta]

Rdawg said:

"Beating the VA is done by emulating their tactics. disagree. provide the required evidence for service connection is the only way."

I assumed too much when I posted my agreement with that first statement AskNod made Rdawg. Sorry

I certainly DO agree with his statement but I agree because I have never filed a personal claim without compelling and probative medical and/or legal evidence right from the git go, with proof of an established nexus or a nexus I knew I could prove with more research.

Once my claims were filed,( gee........ 12 years of claims and I am a claimant again)

that is when I prepared my war plan...........and emulated their tactics.

What I mean by a war plan is where I felt any landmines would turn up and then how I would defeat the potential landmines.

For example a claim I filed in 2003 for DMII due to AO contained no diagnosis at all of my husband's diabetes.

And my claims regarding my husband's heart disease (IHD) regarded no diagnosis in his Med Recs.

I got IMOs for the DMII claim,but had no IMOs for the IHD claim.

Obviously I had to anticipate some land mines but I agree with you too

that Evidence is everything.

My AO IHD survivor death claim was denied last December but,by emulating and using the VA's tactics, they then reversed and awarded about 3 weeks later.

M21-1MR is as much as a powerful tool-for us claimants,

as it is for the VA. as well as 38 USC and CFR.