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]

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. You're right on most points here except remember this already won claim has already been established by the bva as being aggravated by military service therefore an increase in severity has already been established. Now that it has been rated, this rating must go back to 1983 (70%) up until 2009 when I became unemployable (100%)as previously stated above. Fenderson ratings are NOT MANDATORY and medical evidence is not always needed but helps.I won this claim based on benefit of doubt theory.Remember all my records were destroyed by the varo in 1983.Also remember that this claim must be adjudicated as if it occurred in 1983.What im looking for is the 70% rating from 1983 up until 2009 when i finally became to disabled to continue working.Again remember this is still an unadjudicated claim from 1983 including the ratings given until I (not va) say it's final.

[ketchup56]

Sorry don't know how I screwed Broncos reply up so badly above.

[deltaj]

This sounds like a pending claim. I suggest you do a search online under pending claim AND veteran. I don't agree that this is a staged rating situation since V.A. never granted a V.A. exam on your pending claim and the National Personnel Records Center misplaced your service medical records. When you filed your claim V.A. was supposed to request the original of those service records from the National Personnel Records Center and the National Personnel Records Center was supposed to lend the originals of your service medical records (SMRs) to V.A.. V.A. now has some service medical records in the file but when were these service medical records (SMRs) received? Have they been there all along? 38 CFR 3.156 © or 38 CFR 3.156 (b) comes to mind. I can't recall which of these regulations is about late following service medical records. A reopened claim would be applicable if this were a denied claim, but it's not because what you have is a pending claim for service-connected compensation.

Hope this helps,

Delta Jackson

Edited February 6, 2015 by deltaj

[ketchup56]

Deltaj: You are dead on point on everything you posted.This is exactly what I argued on NOD of effective date of SERVICE CONNECTION. Your timing and observation on this is well appreciated. Varo Oakland has as of Feb.4th.2015 made a decision, and I'm just waiting on the big brown envelope with their results. Will post back here on this thread upon results. Good looking out to everyone who posted to this topic.

[ketchup56]

Update: Varo Oakland denied early effective date service connection. Reasons and basis (hold on to hats ladies and gentlemen) they claim I "failed to prosecute claim" therefore claim was denied 4/1983. Now remember at the start of this topic I stated va never found my service treatment records, never sent notice of any kind, never ordered a c&p exam just nothing. But I failed to prosecute claim. You gotta laugh to keep from crying sometimes..So people what this amount's to is a "silent denial".....No decision notice of denial. ...PENDING CLAIM DOCTRINE. .."THE FACT THAT THERE IS AN ABSENCE OF NOTICE WHEN A CLAIM IS ABANDONED THUS PREVENTING AN ABANDONED CLAIM FROM RENDERING A PRIOR UNADJUDICATED CLAIM FINAL". I think the va just made my appeal a little bit easier. Well im prepared to get in line back to bva. Will totally skip dro process as varo adjudication at this point is useless an a waste of time. .. Gotta love it........lol

[ketchup56]

Claim is now with a so called "subject matter expert" at VACO WASHINGTON as per Allison Hickey, Tom Murphy, Laura Eskanzki at bva.Supposedly to hear something this week. .All this after I sent the evidence to Vaco via e-mail to Allison Hickey. ..