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BigRed

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Hello Everyone and thank for all of your help and service. I desperately need your advice because I am at a roadblock. Here is my info:

Filed Claim April 2005 - Throat condition, nasal infections and headaches, skin disorder

Denied December 2005

*C&P exams were received by VA on December 15 but never used in December decision. PTSD was diagnosed as cause of headaches and nasal polyps were diagnosed during these C&Ps. The doctors linked both to the Gulf War. I did not send a NOD and that was that.*

August 2010 I opened a new claim for Throat condition, nasal infections and headaches, skin disorder, CFS and Fibromyalgia.

Denied April 2011. Sent NOD 1 April 2011.

December 2011 VA realizes that the C&Ps from 2005 were never used in the 2005 decision and sent me another rating decision letter stating they have looked at the C&Ps from 2005 and the denial is confirmed and continued. Isn’t this VA cueing themselves?? They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps. I disagree with VA and think that service connection should be granted back to original claim date of April 2005 and send NOD 2 May 2011.

June 2014 I receive a DRO Review Officer decision letter granting sc for PTSD, throat condition, nasal infections and headaches, skin disorder with an EED back to August 2010. CFS & Fibro were deferred.

My question is what about NOD 2 requesting the EED. It is listed in eBenefits under historical claims as if it has been resolved but I have not received anything in writing. Doesn’t VA have to legally address all NODS? I have sent my VSO 4 inquiries about this but he won’t return my calls etc.

Thanks,

BigRed

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  • HadIt.com Elder

I suggest you send them an IRIS request as to the status of the NOD on the EED.

Tell them what you told us here and ask for a status on the defered issues as well...They might be working on the deferred claims first.

Edited by Berta
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Hi Berta,

I have sent an IRIS but not received an answer as of today.

I just received an answer from my VSO as to the whereabout of NOD2. He says that the June 2014 decision is for NOD 1 and 2 combined and the 2 deferred issues from NOD 1 are still pending (CFS & Fibro).

Can they do that, combine 2 NODs especially if one is looking at issues from C&P exams from 2005. They listed all items as being fully granted and having an effective date of NOD 1 - August 2010. I don't have a good feeling about this becasue they have not mentioned NOD 2 at all in the decision letter.

BigRed

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  • HadIt.com Elder



"December 2011 VA realizes that the C&Ps from 2005 were never used in the 2005 decision and sent me another rating decision letter stating they have looked at the C&Ps from 2005 and the denial is confirmed and continued. Isn’t this VA cueing themselves?? "

Yes , but it didnt help you.

"They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps. I disagree with VA and think that service connection should be granted back to original claim date of April 2005 and send NOD 2 May 2011."

If the medical evidence was the same in 2005 as in August 201O, I would think you have basis for a CUE on the 2005 decision

I dont know how the VSO arrived at his opinion.

Did the VA in the decision give any reason at all as to how they determined the EED?

You stated 'send in NOD 2 in May 2011' but I dont understand how that could be on the December 2011 decision......??? is that a date typo?

One of the most powerful legal arguments I have made for my own CUE claims is proving their violation of 38 CFR 4.6:


"§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

http://www.law.cornell.edu/cfr/text/38/4.6

It sure has worked for me, when the VA failed to consider 'every element affecting the probative value' of my evidence.

And in my case,in one CUE I won in 2012 ,I expanded to include 3 CUEs in the same CUE request that occurred in the same decision.
And another CUE I filed shortly after that one was based on a complete lack of diagnostic code and rating in the above same decision.

So not only does 38 CFR 4.6 have incredible power, if the CUE arises from their failure to consider probative evidence, it can be expanded to include CUEs that arise on the rating sheet, (a legal document) that were detrimental to the claimant and ,.at time of that Cued decision, manifested an altered outcome to the claimant....meaning no retro yet the evidence, if properly considered would have supports a percentage at least at 10% or more and a retro award.

Do you have copies of the C & P results done in 2005?



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