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

[ketchup56]

Well fellow veterans,my claim was awarded by bva veteran law judge Alan s.Peevey and in his decision he noted that 1983 claim as relevent to current award of service connection.So that part(eed)is now ripe for VBA to do the right thing,but will they?I DOUBT IT knowing how they operate. The tdiu was remanded for a CURRENT ortho exam only.File is currently at the Oakland RO for rating and exam.I'm still trying to figure out how to scan this decision, I feel this is an important decision because it was granted without st's but with COMPETENTand CREDIBLE LAY evidence.

[killemall]

Nice!

[ArNG11]

sweetness.

[ketchup56]

Vba not only played dumb on the earlier effective date for service connection from 1983, they also did not apply 4.16 (b) by not submitting tdiu claim to the director of comp and pension for consideration of extrascdular consideration when there was clear evidence of unemployability dating back an extra year from THEIR OWN effective date of tdiu. I have already submitted nods on both effective date claims.. Oh btw asknod I did end up a the new car sales showroom.So the fight continues..

[Navy04]

Great News bud, and a good way to end a troubled year for you. Hope you have a good New Year and keep us posted.

[broncovet]

Dont forget the "other" part of you effective date:

Generally your effective date is the later of the date you applied, or FACTS FOUND, which means the date the doc says you were disabled.

You will need medical evidence you had the malady back in 83. No medical evidence = no benefits. Of course, I dont know about your 83 medical evidence or the symptoms thereof. As ASK nod suggested this may be a Fenderson "staged" rating. Thus if you are 100% now, it may be tough to show you were 100 percent in 1983, especially if you worked full time back then.

I never quite figured out why the VA did not give ASK nod some sort of a Fenderson staged rating, but I guess we arent looking that "gift horse" in the mouth.