Evidence Used To Deny Claim

[Charleese]

Hi everyone,

In its denial of my huband's 1958 claim the Evidence cited by RO was from a BVA denial decision and his 1983 application.

The BVA decision dealt with an earlier effective date of a (increase) compensable evaluation from 1983-2000. It had nothing to do with his 1958 claim, because 1958 claim had not been developed yet. Matter of fact his 1958 claim wasn't developed until after this BVA decision was made (this decision was made on November 30, 2005). In this decision BVA remanded 1958 claim to RO for development. RO denied his 1958 claim on June 17, 2006. Am I correct in stating that BVA had no jurisdiction over this claim and that their decision can not be used. Please respond.

Also, his 1983 application was previously considered in establishing service connection for his left knee disability. Shouldn't this application be deemed duplicate evidence. The reason why I am questioning this is because in their denial of his 1958 claim the service medical records that he sent them they state: "The recently submitted copies of your service medical records have been previously considered in establlishing service connection for your left knee disability, and are deemed duplicate evidence. They have no bearing on establishing an earlier effective date as they provide no evidence that you filed a claim with VA, at any time prior to September 9, 1983". If they can use this for service medical records, couldn't the same be said for his 1983 application. Please respond.

Thanks!

Charleese

[Ricky]

The SMR that he was using was to show objective medical evidence that it was as least as likely he would of filed a claim in 1958.

Did he file a claim in 1958 or are you discussing an inferred claim? To answer your question about the VA they can and will use anything to their benefit wheter it is authorzied or not. Please explain the circumstances about the original filing of the 1958 claim and maybe we can figure out your needed plan of attack. Forget about the tactics the VA is using against you. I know it is hard as it really pisses vets but you need to get pass that point in order to fight them.

[Charleese]

The SMR that he was using was to show objective medical evidence that it was as least as likely he would of filed a claim in 1958.

Did he file a claim in 1958 or are you discussing an inferred claim? To answer your question about the VA they can and will use anything to their benefit wheter it is authorzied or not. Please explain the circumstances about the original filing of the 1958 claim and maybe we can figure out your needed plan of attack. Forget about the tactics the VA is using against you. I know it is hard as it really pisses vets but you need to get pass that point in order to fight them.

Hi Rick,

Yes he did file a claim in 1958 with a VA Representative in Tazewell, Virginia. All he has as proof is his objective medical evidence (it was as least as likely as not because of his injury (major surgery on left knww, that he would of filed a claim in 1958), his subjective testimony and a notarized statement from his best friend at that time, who went with him to the VA in Tazewell, and witness him fill out application and witness him submitting application to Tazewell VA Representative. What happen to that application after he submitted it to VA Representative, no one knows and the Tazewell VA is no longer in existence and has been out of existence for about 30 to 40 years. He never heard from Tazewell VA or any other VA concerning his 1958 claim. Even though he exercised due dilligence by going to the place where VA Representative was to be told he didn't come in today, come back at such and such a day or to be told he cancelled all appointments until such and such a date. The place was very prejuidced, because the owner's 12 year old son would call him the N word and the owner would do nothing to stop him. He endured this type of situation all of 1959, 1960 and 1961. Rather than get in trouble, by hurting this boy, because he felt after this boy got older he would stop, but he didn't, he stopped going there. He moved from the area but each time he moved he left a forwarding address with the Post Office, expecting to hear from Tazewell. He also wrote in his letters to VA, NODs, as well as speaking verbally when he went for treatment and C&P exams, he would tell them about his 1958 claim that he filed but never heard from any VA about it. It wasn't until August 8, 2005 when he filed a CUE claim that he stated that he had not abandoned his 1958 claim and he let them know that his CUE claim was a separate issue and dealt with a 1985 issue, did BVA in their decision to deny him for an an earlier effective date of a (increase) compensable evaluation, remanded his 1958 claim back to the Connecticut RO for them to develop. As I stated before he exercised due dilligence from 1962 on to find out what happen to his 1958 claim but was totally ignored by VA. This BVA decision (increase) compensable evaluation, is the decision that RO used as evidence to deny his 1958 claim on June 17, 2006. This decision on November 30, 2005 to deny (increase) compensable evaluation, dealt with the 1983-2000 years, not 1958 because that claim had not yet been developed and that is why BVA returned it back to RO for development. It is our understanding that a claim has to be developed on RO level first then NOD is done through BVA. What he is saying is that BVA had no jurisdiction over his 12958 claim and therefore, RO cannot use their decision as evidence to deny him his 1958 claim. He is also saying that his 1983 application for compensation was already used in 1983 to deny him benefits and now they are using it as evidence again to deny him his 1958 claim. He was service connected back to 1983 in 1985. Because they said he could not use his SMR's because they were duplicative, is his reason for saying that his 1983 application is also duplicatived.

I know you said forget about the tactics the VA is using against him, and I know it is hard as it really pisses vets but you need to get pass that point in order to fight them. However, it is our understanding that when you do a NOD that you have to particularly state what you disagree on, and that is why he wants to let them know that he disagrees with them using this BVA decision, as well as 1983 application.

I hope this answer your questions and all others who have questions.

Thanks

[LarryJ]

Well, Charleese, I'm kinda new here and kinda new to the VA stuff ( I've just been dealing with them for 3-4 years, whereas there's lots of folks on here that are really pros at this ) so I'll just voice my opinion and let the others correct what I get wrong

It is my understanding that he filed a claim in 1958, or, rather he tried to file a claim in 1958.

It is my understanding that the BVA has, now, finally, agreed that he did TRY to file a claim in 1958.

It is my understanding that the BVA has "remanded" that 1958 claim to the Regional Office in Conneticut for development.

If this is correct, then the 1958 claim will be considered a "new" claim, simply awaiting "development" by the RO and as such is only that of a "new claim" that has not been "rated" ( no decision made ), nor have you had the decision letter so you don't know whether the decision is favorable or not, so you haven't filed a NOD or anything else. So, this newly filed claim can have no probative value in any other dealings you have with the VA.

my $ .02 and only my $ .02

[Hoppy]

I finally think I understand the problem with them using the evidence in from 1983 to deny 1958. I see no reason they can not use the 83 evidence in denying the 58 claim. All you have to do is shoot down the 83 evidence, if you can. It sounds like you shot it down in 85. Telling them they can not use the evidence becuase they restricted you from submitting duplicative evidence does not sound like a valid way of shooting down the 83 evidence. Since I do not know what the evidence is or how they intrepreted it I have no suggestion other than to do what you did in 85 to shoot it down.

Is it possible that the RO confused the remand for a claim for an increase in rating of the 1983 condition with a remand to develop the 1958 claim. If so then explain to the RO that they should still be working on the remand to develop the 1958 claim. If this is the case then maybe you on the right track. Maybe the BVA is listening to you and your situation has impressed them.

If not consider the following problems and prepare for them the best you can. These questions are not ment to discourage you. You might be confronted with them and thus should be prepared.

"As I stated before he exercised due dilligence from 1962 on to find out what happen to his 1958 claim but was totally ignored by VA."

What did he do between 1958 and 1962. Waiting four years to follow up on a claim is not deligence to my SO. I waited one year and my SO would have nothing to do with a EED claim.

What documentation do you have in 1962. Did he refile in 62. If not, Why.

Even if the VA has some type of system for an emplied claim there are a lot of holes in his dilegence. Telling friends and doctors about a claim does not give the VA an opportunity to adjudicate a claim. The VA needs to have an application and evidence in front of them to adjudicate a claim. Simply walking into any RO between 1958 and 1983 and telling them to find the claim or refile it would have been easy to do.

You have noterized statements from witnesses. Have you found any cases where this is acceptable to verify an application. You need to find existing cases otherwise you are trying to rewrite the way the system has operated for decades. This is a long shot without case law to support you.

Same goes with the argument that his condition was severe enough that he would more likely than not have filed a claim. Is there any case law to help you push this through the system.

My thoughts

[Charleese]

I finally think I understand the problem with them using the evidence in from 1983 to deny 1958. I see no reason they can not use the 83 evidence in denying the 58 claim. All you have to do is shoot down the 83 evidence, if you can. It sounds like you shot it down in 85. Telling them they can not use the evidence becuase they restricted you from submitting duplicative evidence does not sound like a valid way of shooting down the 83 evidence. Since I do not know what the evidence is or how they intrepreted it I have no suggestion other than to do what you did in 85 to shoot it down.

Is it possible that the RO confused the remand for a claim for an increase in rating of the 1983 condition with a remand to develop the 1958 claim. If so then explain to the RO that they should still be working on the remand to develop the 1958 claim. If this is the case then maybe you on the right track. Maybe the BVA is listening to you and your situation has impressed them.

If not consider the following problems and prepare for them the best you can. These questions are not ment to discourage you. You might be confronted with them and thus should be prepared.

"As I stated before he exercised due dilligence from 1962 on to find out what happen to his 1958 claim but was totally ignored by VA."

What did he do between 1958 and 1962. Waiting four years to follow up on a claim is not deligence to my SO. I waited one year and my SO would have nothing to do with a EED claim.

What documentation do you have in 1962. Did he refile in 62. If not, Why.

Even if the VA has some type of system for an emplied claim there are a lot of holes in his dilegence. Telling friends and doctors about a claim does not give the VA an opportunity to adjudicate a claim. The VA needs to have an application and evidence in front of them to adjudicate a claim. Simply walking into any RO between 1958 and 1983 and telling them to find the claim or refile it would have been easy to do.

You have noterized statements from witnesses. Have you found any cases where this is acceptable to verify an application. You need to find existing cases otherwise you are trying to rewrite the way the system has operated for decades. This is a long shot without case law to support you.

Same goes with the argument that his condition was severe enough that he would more likely than not have filed a claim. Is there any case law to help you push this through the system.

My thoughts

Yes Hoppy, it seems to us that the RO hass confused the remand for a claim for an increase in rating of his 1983 condition with a remand to develop the 1958 claim. He did explain to them that they should be working on the remand to develop his 1958 claim. Also, in 1983 he told Connecticut about his 1958 claim. They told him that in order for him to get help he would have to file a claim with them. They did not look or assist him in looking for this claim. He looked for this claim on his own. They denied his 1958 claim without finding out what happen to his application. He even made an inquiry on VA website about his 1958 claim and the RO in Connecticut admitted in writing that they had not contacted Tazewell VA or any other VA that Tazewell may have transfered their files to, about this claim. We can't understand how they could deny him with out this information. Matter of fact in their response to his inquiry VA seemed to imply that their was no files whatsoever for anyone who filed with Tazewell VA. What he did from 1958 to 1961 was to go to the place where the Tazewell VA was on the dates he was told to come to try and catch VA Representative to see what the status of his claim was. You have to understand back in those days in the South the VA offices was not set up like it is today. They operated out of stores, or restaurants, and they came like once a month, if they came at all. You had no way of writing to them, because you would be writing to the store or restaurant and there was no guarantee that they would get letter or not. You would hope and pray that he would be there on the day they tell you, however, in my case the VA had me coming to that place during those periods sometimes 3 and 4 times in a month. If thats not due dilligence then I don't know what it is.

No we have not found any cases concerning applications. However, we will continue to look on BVA site. If there is some other site that you or anyone on hadit may know to look up cases, please let us know. Also, there are several cases that speaks of objective medical evidence which states it is more than likely or not, but it doesn't pertain to an application.

Thanks!

[Hoppy]

Charleese

It has been difficult to get the time line of events in to my head because I was focusing on the arguments that you were using. Here is a possible scenario.

The claim was denied in 1983 and awarded in 1985 either due to appeal or new evidence. You requested a higher rating and an earlier effective date back to 1958. The BVA denied the higher rating and remanded development of the 1958 claim. The RO denied the remand citing the evidence from 1983. The BVA possibly has upheld the RO on the denial of the 58 claim that was developed until the RO found the 83 decision and denied the remand. Or it is still pending BVA appeal. Let me know which is correct.

If the remand to develop the 58 claim has not been acted on due to confusion on the part of the RO as to the fact that they thought the remand was for the higher rating. Then the RO needs to be informed that the remand of the development of the 58 claim is still pending. There was a guy on the board who had a problem with the RO not acting on remands. I do not know what to tell you if this is happening. Maybe somebody else knows.

If the RO denied the 58 claim citing the 83 denial, I would make sure that the RO was aware of the events that occurred in 85 that led to service connection. It is entirely possible that they started to develop the 58 claim and when they got to the 83 denial they just quit reading and made the decision. If the SOC discussion as to why they made the denial was based on the 83 records and makes no mention of the 85 events, then it could be they did not read the entire file. This would not surprise me. Make sure they have read the entire file and tell them to address the 85 events and let you know why the 85 award was not considered. They are supposed to write up these SOC’s in a way that you know what their logic is.

Get all your appeals in on time as this goes on. Also, keep looking for the lost records from the VA that went out of business. This might jump up again. If someone told you all the records from an entire VA office have been lost, I would not believe them. I will tell you why later. Instead I would get a congressional inquiry into the matter and make a congressman tell you those records were lost.

This is the best I can do. Get a SO to help you. There might be other case law and arguments that the SO is familiar with.

To answer one question, the BVA website is the only place I know of to read case law.

My experience with lost records.

I was missing 26 years of records from a VA hospital. I was told the records were destroyed in the 1994 Northridge earthquake. The Hospital was in Sepulveda which borders Northridge. This caused a big problem for my claim because I had to prove continuity of treatment after service and there was a 26 year gap. When I was told the records were lost I had the guy write me a letter. I thought I had enough evidence without the missing records and did not want the VA to wait a year to get an answer that they were lost. I took the letter he gave me to the RO. Five years later I casually mentioned to a records clerk at the same hospital that my records were lost in the earthquake. The clerk got really upset becuse she said that she worked at the Sepulveda hospital after the eartnquake and they went to great lengths to save those records. I told her I had a written letter from the clerk. She asked me the clerks name. When I told her she said that the guy was a liar and was fired for sleeping on the job a year earlier. She told me she would get the records and she did. It took 5.5 years to get the records. As it turned out these records were way more important than I thought.

Edited August 16, 2006 by Hoppy