Nod Dilema - It's In, But Found 3 Unadjudicated Claims Fm 2012 Claim (Focused On What Was Addressed, Failed To See What Wasn't)

[GlassRose1500]

I was looking at my(VA form 21-438) fm early 2012 to quote some language, and found three unadjudicated claims for SC / Comp, including lower left radiculopathy related to SC IVDS/DDD, and Cervical Spine Condition with bilateral upper radiculopathy.

I cannot believe I didn't catch that - I was so focused on what they did address I forgot to look at what they didn't (and they didn't - in any way shape or form - not as deferred, just no mention).

The NOD is in, and doesn't include any info about these unadjudicated issues, but as I understand it they will remain open until adjudicated, so there is no ticking clock. The NOD as it is written seems to going FAST (went from stamped (Nov 21, 2014) to Under Review (like, three weeks later), then Gathering Evidence (in about a week)).

So I'm inclined not to complicate things with unadjudicated stuff. Think that's the right call?

Edited January 6, 2015 by GlassRose1500

[FormerMember]

Any claim not mentioned specifically in a letter of explanation of a decision for benefits is deemed denied if not delineated as being deferred or requiring further investigation. If they don't mention it, it's considered moot. Moreover, if you do not protest by filing an objection or query, it is really moot and you are presumed to not have any druthers on the subject anymore.

The repair order for that is to file an amended NOD 21-0958 specifically asking for appellate review of the prior enumerated (and still not adjudicated) items you filed for. This protects your right to appeal them to the BVA and the CAVC. VA does this a lot thinking you have the IQ of a pet rock and a short memory.

[GlassRose1500]

Apparently I do have the IQ of a pet rock because I missed these unadjudicated issues completely... the NOD I filed was timely. An amendment would not be, unless you are saying the form you referenced would permit the amendment so long as the initial nod was timely?

[GlassRose1500]

I'll get right on researching that. Thanks for pointing me in the right direction.

I want to ensure DRO review w/face to fave stays on track. It may be I chose the path of new and material evidence at some future point w loss of 2012 date.

Tks. My fellow Night Owl...

[FormerMember]

Hell, any Vet who's interested in guns is okay with me even if they're a ground pounder. What I would do is submit it as:

"Addendum to NOD filed xx/xx/xxxx concerning disagreement with unadjudicated items filed for on the same date - to wit- Bozos # 1, 2 & 3 which have not been adjudicated to date. Appellant has waited patiently for claims to be adjudicated and is worried VA may have overlooked these. In the interests of judicial economy, Veteran asks that these outstanding claims be adjudicated forthwith so as to be incorporated into any future appeal in a timely manner and to avoid piecemeal adjudication and preserve scarce judicial resources."

Beat them up with their own words. This puts them on notice that you weren't born last night. It also points out they cannot do the "You didn't bitch so its moot." These claims have no true suspense dates such as the year following a denial because they are still viable legally. Being unadjudicated, they can only expire if the whole claim is closed out. Otherwise they fester like a splinter in your finger legally. If you have any added material evidence (new), you can also send that in regarding the AWOL claims. This reinforces the claim by implying you are still waiting on an initial determination and if they are going to throw a hissy fit, it's best to get all the contentions on the table early on.

Edited January 6, 2015 by asknod

[ketchup56]

This claim is already ripe for piecemeal adjudication.

[FormerMember]

Go the IRIS route and be politely inquisitive. Ask them what the progress is since they failed to mention the items. Ask for a best guess on completion and see what they say.

One thing I strongly advise my folks to do is save every IRIS commo. I had a wad of about 25 of them I submitted with my Writ yesterday. After asking them for over a year when they planned on adjudicating two claims they've been sitting on since Oct. 2012, they continued to say "Gee, we're sorry it's taking so long but claims in Seattle are running about 15 months so be patient." On the last one in November I got more blunt and asked how 15 months comports with them having it 23 months. The answer was priceless: " Claims in Seattle are running about 15 months so don't fret..." That's going to look pretty foolish in about a month. The best one was "We're sorry we can't adjudicate your ILP claim but the raters have your c-file and we don't have access to it." A month later and another IRIS query came back with "Sorry, the c-file is in DC on an appeal you've filed. When it gets back here, we'll do the SOC.

IRIS is a wonderful tool because each commo has an inquiry number. It's embedded in their computer and cannot go away. When you get to appeal or a Writ, the avalanche of evidence cannot be rebutted. Always use their machine against them. Let them do the work of undermining their own case against you. Remember, these guys can't find their rear end with a methane detector in a closet.