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]

Guys i really dont see much light at the end of the tunnel the way that my denial is broken down. i do think that this monster is too big for me to slay. i do think that i may justlet this go. i do appreciate the spirited debate and the uncionditional help but i do feel that I am fighting a losing battle. I cant bear spending all of my last resources on something that isnt going to get approved anyway.

[Philip Rogers]

Guys i really dont see much light at the end of the tunnel the way that my denial is broken down. i do think that this monster is too big for me to slay. i do think that i may justlet this go. i do appreciate the spirited debate and the uncionditional help but i do feel that I am fighting a losing battle. I cant bear spending all of my last resources on something that isnt going to get approved anyway.

Yup, it's best to quit now. No sense trying to win something if your not ready to fight it all the way!!! What I can tell you is if you can get rid of that attitude you can win!!!!!!!!!!! It'll take a while but in the long run, it can be done. Took me 10.5 yrs to win mine but I won. I still have another that's been going on for 23 yrs and been to the court twice and I know I can win, "if I don't give up." The choice is yours. jmo

pr

[broncovet]

Dearman

If you have not taken your cfile to at least one attorney for review, then, by all means do so before you give up. Effective dates are one of the most complex areas of Va law.

Carlie,

You posted,

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.

This position, while one being taken by VSO's, raters, some Vets advocates, AND EVEN MANY BVA JUDGES, is unsupported with CAVC case law. Instead, when the Veteran submits New and Material Evidence in the one year appeal period, this "tolls" the one year period, and keeps the claim pending. Rememeber, that, according to Bart Stichman's testimony to congress, BVA decisions, which are appealed, are wrong 75% of the time.

As explained in the "Pending Claim Doctrine" article, cited below:

What happens if a veteran’s communication, in fact, met

the definition of an informal claim, but VA adjudicators failed

to note this fact at the time? The answer is that VA regulations

indicate that such a claim remains pending: a “pending claim”

is defined as “[a]n application, formal or informal, which has not

been finally adjudicated.”

16

The significant effect of the seemingly

simple and common sense concept of a pending claim becomes

apparent when VA grants a claim and assigns an effective date for a

benefit alleged to have been claimed years earlier, but that was not

formally adjudicated when it was first raised.

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

Edited December 27, 2012 by broncovet

[broncovet]

Remember, if you have a "pending claim", you can submit new evidence at any time AND this evidence will be as if it was at the beginning of the claim.

While its true the effective date wont be earlier than the date to reopen, when the Veteran initiates the reopening of the claim within the one year period, this means the effective date, if/when benefits are actually awarded will be the later of the facts found or the date of claim.

[SpcDearman]

Dearman

If you have not taken your cfile to at least one attorney for review, then, by all means do so before you give up. Effective dates are one of the most complex areas of Va law.

Carlie,

You posted,

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.

This position, while one being taken by VSO's, raters, some Vets advocates, AND EVEN MANY BVA JUDGES, is unsupported with CAVC case law. Instead, when the Veteran submits New and Material Evidence in the one year appeal period, this "tolls" the one year period, and keeps the claim pending. Rememeber, that, according to Bart Stichman's testimony to congress, BVA decisions, which are appealed, are wrong 75% of the time.

As explained in the "Pending Claim Doctrine" article, cited below:

What happens if a veteran’s communication, in fact, met

the definition of an informal claim, but VA adjudicators failed

to note this fact at the time? The answer is that VA regulations

indicate that such a claim remains pending: a “pending claim”

is defined as “[a]n application, formal or informal, which has not

been finally adjudicated.”

16

The significant effect of the seemingly

simple and common sense concept of a pending claim becomes

apparent when VA grants a claim and assigns an effective date for a

benefit alleged to have been claimed years earlier, but that was not

formally adjudicated when it was first raised.

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

I will do that before i give up. I want to ensure that he/she has my SMR (STR). I don't really want to give up but I am in waaaay over my head. I did not expect to see that in my denial. I am not really worried really about the effective date but am worried that it wont ever be approved.

[rdawg]

berta, no problem. I fall into the category of filing my initial claim blind and expecting the va to develop the required evidence. Then I found Hadit and your words about medical evidence. Obviously your words had a lasting profound effect on me. thank you,

broncovet, thanks for the support on the eed debate. I just want accurate info for those coming to the board, I know my postition is correct because I lived it. carlie posted a bva decision where the ro made a mistake and was corrected at bva. it actually supports the position she is arguing against. the ro is going to make mistakes. that doesn't mean we change our tactics based upon possible future mistakes.

spcdearman, I understand your feelings of wanting to give in. That is the way the va wants you to feel. currently, they hold all the cards in the deck and have arranged them (in the wording of the denial) to make you feel like it is a non winner and a long fight. I felt the same way until I got my SMRs and found out the ro left out alot of information that would support my claim.

my denial for low bak injury said "even though you were seen for low back pain it was acute and transitory and is not related to your current condition". I got my SMRs and lo and behold I was seen 14 times over 8 mos, prescribed pain medication, put on profile and given physical therapy for my low back. Not at all the picture they painted.

I took my SMRs to my chiropractor and he was kind enough to write a note (not an IMO, big difference) relating my current condition to service. I submittred it and asked for a reconsideration based on the new evidence and was denied again. Then I got an IME/IMO from Dr Bash. submitted it and asked for reconsideration and was awarded SC.

You may or may not prevail but don'tbase your decision on wether to fight or not based on the va interpretation of your claim.