Ten Year Old Forgotten Claim Now In Administrative Review.

[leadbelly1981]

Hi I served three years in the Army from 2000-03 as a 11c with an honorable discharge. I ets from camp casey korea and had filled a claim during my exit exam for my left knee and left shoulder. Both were approved for tendonitis and i was rated at 20 %. At the time of my exam i also complained of lower back and hip pain on my left side. I belived it was due to my left knee. We were road marching and running a lot in korea, thats what the infantry does. In 2004 when i got my 20% rating for my knee and shoulder the claim for lower back and hip pain were deferred.Fast forward in jan 2013 i went to the county vso and had them help me file for an increase for my shoulder it has continually gotten worse. The claim took a year and at the end i was granted 30%. The weird thing is when i received my rating in the mail the old claims were addressed stating we see that your claims for lower back pain and hip pain in nov 2003 are unreloved sorry for any inconvenience. Online on e benefits the claims for lower back pain and left hip pain just appeared one day and are in administrative review. My question is what do i make of this what do i do?

[FormerMember]

It may get ugly if VA feels they have to cover their a55. They can adjudicate it such that you will be told it was "deemed denied"-i.e. you never heard otherwise at the original claim grant in 200(4?) so you should have put two and two together and figured out it was denied. The term deem denied came up in Court one day when the BVA said if you do not hear from us, then you would have to surmise it was denied. Much jurisprudence has been written on this but the fact remains that VA continues to try to use it as a ploy to fence you out. It is untenable but that never stopped them. You use the due process clause to rebut and say you cannot appeal that which you have not received a denial on with which to begin a NOD. 38 CFR 19.25 and 19.29. Denial must be sufficiently clear for appellant to ascertain what it is VA did to him and how to proceed.

§ 19.25 Notification by agency of original jurisdiction of right to appeal.

The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits.

(Authority: 38 U.S.C. 7105(a))

§ 19.29 Statement of the Case.

The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain:

(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;

(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and

© The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.

(Authority: 38 U.S.C. 7105(d)(1))

[john999]

AskNod

So if you filed a CUE based on an original claim decision, and the VA never successfully sent you a letter telling you about your rating and appeal rights would that be a big enough violation of due process to set aside a decision? If you never get appeal rights how can they hold you to the one year rule to file a NOD ect. We probably discussed this before but I was not listening to what you were writing being too angry about the whole process for things to sink in.

John

[leadbelly1981]

Thank you very much for your response! I have another question. I I received my rating decision packet which was dated February 13 2004. In this packet my claim for lower back pain and left hip disorder, a sentence reads as follows. A decision regarding your claims listed below will not be made until we review additional evidence. I never heard anything from the VA after this point in regards to my claims that were not rated. I did tell my doctor at the VA about my pain and the answer was always take IBP and ice the area that hurts. In my updated rating packet dated nov 21 2013 on the second page a section reads What We Decided under that it states my new percentage of 20% for my left shoulder and then under that it says. The deferral of a decision on entitlement to compensation is continued. it says the same thing for my left hip disorder. Under this it says the review of your claims folder revealed these issues are still outstanding . We have therefore continued the deferral of a decision on entitlement to compensation for these issues pending the completion of all development you will be informed of our actions. We apologize for any inconvenience. So it seems to me that they have not denied the claims at least not yet. If they find that I do have a left hip disorder and lower back pain do I get back pay from the original date of the claim which is September 8 2003? What should I do?

[leadbelly1981]

John I have not filed a CUE I don't even know what that is. basically I have claims that have went unprocessed since September 2003 and now the va has said sorry for any inconvenience and is looking into the claims. you can see my other response. I don't know what to do!

[FormerMember]

The answer to LB1981's question is "Yes. Your claim appears to be on a path to initial adjudication. VA will rate it and if you win your grant (which I suspect you already have), your effective date for those two claims will be the day you filed. The Court rationalizes it thusly: Justice delayed is not justice denied. The mere fact that something wasn't done in 2004 is immaterial as long as it is done eventually. You could die and your spouse legally could apply for accrued benefits and collect it. The reason I suspect you've already won is that VA would normally just cook up a wonderful "Dear Leadbelly1981, Thank you for your service. We regret to inform you that we are unable to grant the claims from 2003 because_____________. "

John,

A decision mailed but not received abrogates the Presumption of Regularity. If the decision in 1973 was mailed to you but returned (and clearly documented in the c-file as having been returned), then your appeal rights from the 1972 claim are still viable. As long as they did not successfully remail it to you within the permitted suspense year, then technically the claim lay in stasis and an appeal remained viable.

As such, it isn't CUE but a claim for an earlier effective date based on lack of finality. This would be characterized as a "freestanding claim". Finality of a claim cannot attach to one whose claimant has not had an opportunity to exercise his/her right to contest it thoroughly (at the BVA) to its logical conclusion. You did have one last level of appeal to the BVA available to you that was thwarted by your contention that you failed to receive your decision. However, the VA response to that is the phone (and USPS) works both ways. If you moved or failed to apprise the VA of your new home under the overpass during the running time of the claim suspense date, they can say they had no way to send it to you. If you collected any of the funds within a year of the time of the decision, that too, would constitute an implicit acceptance of the decision- as is- with no effort to appeal. Of course, it would also show you were aware the decision occurred. In the obverse, if the funds accrued for a whole year or more untouched (proving your ignorance of the completed adjudication), this would be your smoking gun for the EED argument. The appeal would then pick up with the date of decision (where you left off) and you could now file your NOD with the 10% and begin that argument about Dr. Rothburd's records not being addressed. This is covered in the Doctrine of Laches which does not penalize a Veteran for failure to act on a screwup for decades. http://asknod.wordpr...ine-of-latches/

[leadbelly1981]

Yet another question. I looked through my medical records and i have no complaints of hip or lower back pain. I can tell you why it is because i sucked it up and drove on. However at my medical exam prior to ets i told the doctor of my hip and lower back pain and it was filed as two seperate claims one for lower back pain and one for left hip disorder. Is that proof that the medical condition existed since my complaint was before my ets. I have no other medical evidence of these claims i have just lived with it. Any advice?

Thank you.