Charles V. Shenseki (Fed.cir.2009)

[ketchup56]

I think i might be due an eed back to jan.1983 . I filed a claim for my back disability in 1983 while at out processing from service. At the same time i filed the claim after turning over all medical/personnel records, when time came for my medical exam, i was informed that a medical exam would NOT be performed due to they the(army) had misplaced my medical records. Exit Exam was never provided. Went on with my life, with this bad back for all these years up until apr.2010 when i filed the same claim again, claiming the same disability. BTW claim was/is for aggravation of my back, which had it's initial injury before service.(how convenient for records to come up missing). I ordered a copy of my c-file in 2010, and low and behold there it was, the original claim application dated 1/24/1983 with an end product code established by the vba as ep code110 still active and pending. Also there was, the medical determination made by the medical examiner that an exit exam would not be performed due to missing medical records.(seems to me all the more reason to give an exam you think). Anyway's the claim filed in 2010 is now at bva been remanded to the amc and back to bva awaiting review by the vlj. Idiot's at the regional level can"t seem to grasp the fact that the burden is on them to disprove NO aggravation of a pre existing condition that was noted clearly on my entrance exam physical sf 88 that i provided.(seems really onerous on the governments part considering no service medical records to form a baseline of disability). There was no final adjudication on the original claim filed in 1983, no notifications to me about a status,exam nothing, it just sat there all these years until i submitted the claim again in 2010 which since then has been given an end product ep code 020.(reopened claim). Came across this CHARLES V. SHENSEKI and i believe this decision would apply in my situation. I also researched vba end product codes and if i'm interperting this correctly this claim should have an effective date back to 1983. Need some of the.. HADIT wisdom on this and it is kindly appreciated in advance......... JOEL

[Vync]

Ketchup,

I hope you win. You got shafted by the worst kind of VA red tape.

[john999]

I think you have an open and undecided claim going back to 1983. I know Bronco and others would love to jump on this. It is not a CUE because there has never been a decision. Your claim has just sat there buried in your file for 30 years. I would proceed carefully because the VA is going to try and wriggle out of this I think.

John

[broncovet]

Ketchup

Have you won benefits? Did you appeal the effective date within a year? What reason(s) did you base your appeal on?

You should likely read this document. Its long, but if you want to represent yourself in the persuit of an EED, then you should read it:

It would specifically seem to apply to you, based on what you posted:

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

[ketchup56]

Ketchup

Have you won benefits? Did you appeal the effective date within a year? What reason(s) did you base your appeal on?

You should likely read this document. Its long, but if you want to represent yourself in the persuit of an EED, then you should read it:

It would specifically seem to apply to you, based on what you posted:

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

Bronco

No i have not gotten a decision yet, currently at bva with the vlj awaiting review. My plans are to FIRST win the claim, then see if they do the right thing and award the eed at rating (which we both know they won't) and if not then hit them with the eed claim. I believe if i were to stir the pot at this point in the claim/appeal process and bring this up now HELL would probably freeze over before i saw any final adjudication. The above read is very good info, which truly applies in my case. I know for a fact, and my evidence speaks for it'self that vba has dropped the ball on this one bigtime, and they know this already.....I also when i filed the claim in 2010, i also filed at the same time for tdiu since i have been on ssdi since oct. 2009 solely for my back disability, to protect the eed for tdiu. Vlj declared on remand that claims were intertwined.

[john999]

If the VA does not do right by you on the EED then hire a lawyer because you will be going to CAVC. You have too much money on the line to make a false move. This whole thing really stinks and I wonder how the BVA will try and get out of it?

John

[FormerMember]

Charles is not on point. Remember that there were two decisions. The unfinished 1980 denial is preserved by 3.156(b) as the Feds pointed out. Until VA issues a SSOC on that decision, Mr. Charles' claim is still open. The second, 1983 claim is what VA maintained subsumed the 1980 decision but it can't. Until the SSOC is issued on it, the 1980 claim is in the freezer. Charles stands for the fact that a second, unappealed (and indeed incomplete) decision on the same claim was attempted but abandoned without a decision. Thus the 1980 claim was not subsumed in 1983 as VA would like to believe. Refiling again and again never addressed the new and material evidence submitted after the original denial in 1980. Thus, any award on the claims in 2013 is just a continuance of the 1980 adjudication. Now that he has won, it will be remanded all the way back down to the AOJ for an award and an initial rating and THAT, ladies and gentlemen, will finally subsume 1980. Since it is going to be in his favor, a Fenderson staged rating will be forthcoming and a ratings % commensurate with documented medical records will be accorded after a long nasty fight. Oddly, SSD or SSI records can be employed to show markedly depreciated earnings or even TDIU.

For a parallel of sorts, look at Bond v. Shinseki http://asknod.wordpress.com/2011/10/08/fed-cir-bond-v-shinseki-2011/

or perhaps King v. Shinseki. Here's some law to throw at it --http://asknod.wordpress.com/2012/12/09/pending-claims-doctrine/

King is on point for Kechup56 :

Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”). To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore this claimant-friendly provision. It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting “VA’s uniquely pro-claimant benefits system”); Young v. Shinseki (2009), Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”).

So... been down to the Dodge showroom looking at the new 2013 Magnums yet?

Best of luck and watch your six at the RO. Sit in a corner and put your wallet in your front pocket. Take your protein pill and put your helmet on, too. You are in for a wild judicial ride. VA will deny this right up to the CAVC and cave in outside on the front steps at the 11th hour.

Edited April 24, 2013 by asknod