HadIt.com Elder Philip Rogers Posted December 31, 2013 HadIt.com Elder Share Posted December 31, 2013 That's his problem, the second claim(NOD) was submitted past the one yr deadline. If he'd filed a NOD before 1 Nov 2012, it would have gone back to 9 May 2011. He can file a NOD and it should be within one yr of the date of his current decision, using 38 CFR 3.156. pr Link to comment Share on other sites More sharing options...
TiredCoastie Posted January 1, 2014 Share Posted January 1, 2014 While you're probably right, Phil, that the more than a year's delay is the rationale for the second claim date, I'm hoping that there is an interpretation of the FRegs that allow for a retroactive determination back to the original claim date. If the veteran couldn't provide the service records because he couldn't get them and the VA couldn't find them either, it would make sense that the missing government information that should have been readily available would not be held against the veteran. All things should have been made right upon the records' discovery - back to the original claim date no matter then the records finally turned up. But we're talking about the US Government, the Department of Veterans Affairs, and just all things military in general. What ought to be common sense and common courtesy just aren't commonplace. It's particularly troubling that because someone didn't do his or her job when this veteran discharged, or at least do it in anywhere near a timely manner, that the veteran may well be cheated out of more than a year-and-a-half of retro while having to expend a lot of extra energy just to get the disability officially recognized. The probability that whomever dropped the ball got the discipline deserved for the damages done is pretty small in my mind. If it were me, I'd probably try to sea-lawyer a NOD using 3.156( c ) and point out that they promised to rethink the original denial when the STRs were found, specifically asking for the earlier effective date. It's certainly not a slam dunk win, but you don't win if you don't try. There probably isn't enough money in the retro to entice an attorney to help, but getting a free case review from a local lawyer who represents VA cases might be worth the effort. Even if a lawyer won't talk, I'd make the argument anyway and make them tell me "no" at the BVA. Who knows...they might say "yes." It's not a lot of additional effort out for the veteran with MRRRR5's help to submit a NOD then a form 9. And you're dead on right...they cannot wait! Link to comment Share on other sites More sharing options...
meghp0405 Posted January 1, 2014 Share Posted January 1, 2014 I wouldn't waste the time or money with a lawyer on this right now. I would submit an NOD (VA FM 21-0958) explain your rationale for the earlier effective date and submit it. The medical records that were found will tell the answer. If the condition was annotated/diagnosed during the time of the denial (records just couldn't be found) that should be the effective date of the claim. Link to comment Share on other sites More sharing options...
MRRRR5 Posted January 1, 2014 Author Share Posted January 1, 2014 Tiredcoastie, PR, and Meghp0405, thanks for responding and providing valuable insight. I plan to have him submit the NOD with a simple explanation about the EED based on the original decision statement from the VA and hope they do grant it; but if not, I'll be ready to assist him in filing a Form 9 and let the BVA decide it. Link to comment Share on other sites More sharing options...
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