Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Read the LatestSearch | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

Submitting new evidence...No LOD

Rate this question


All-American Airman

Question

Good day to all,

Here are some specifics to gain a better understanding...... FDC took effect and was awarded 70% around late March.  I was prior AD Air force and seperated 08. I joined the AF reserve in 2011. The issues on my FDC that I was denied for 1) cervical and upper back pain 2) bilateral numbness pain and tingling left and right arm.

These issues originated while reporting for annual tour at my reserve unit while on Active Duty title 10 orders 2011. I had a pretty bad motor vehicle accident. Hit the median and blew a tire..went airborne like the Dukes of Hazard and lost control, spun out and jumped the median sideways landing upside down on the opposite traffic lane and flipping upright.

 I have the AD for training orders, the ER visit btw, treatment and diagnosis of cervical strain/whiplash, mishap report from my unit, service treatment records at the base urgent care and later physical therapy for cervicalgia symptoms. No LOD was ever given to me only intiated which is one of the issues I have. I have that letter as well. I am no longer in the reserves either.

I also have private physician records just recently of X-ray and MRI that shows evidence of worsening conditions which are 4 cervical disc bulges. A Neurologist that I have been seeing conducted an EMG exam that shows evidence of  bilateral radiculopathy/neuropathy. In the award letter the VA stated the evidence used to determine the claim, came from only Active Duty STR's. Also the contentions were denied in their words (No link was found to military service) I was a newbie and was completely naive about the whole claim process. I should have sent them my STR's from the reserves....

I went to my VSO organization and met with a counselor, talked to him explaining all the new evidence I had and what next steps take. He asked me if  had an LOD then tells me that without the LOD the evidence doesn't mean anything. That they wont even look at it and it would be a waste of time to submit it....Is this true? I am submitting all of it, with a statement of support 4138 and requesting a reconsideration to SC for these denied contentions.....because in essence they did not have it. Please if anyone has any thoughts it would be greatly appreciated. Still a newbie but so grateful for the members here and their knowledge. Thank you for all that you do to research and the information that empowers us. I will keep you posted. 

God bless, All-American Airman

 

Edited by All-American Airman
Link to comment
Share on other sites

Recommended Posts

  • 0

I wouldn't listen to that lazy assed VS0 anymore, if I were you.

Submit what you have.....

"I should have sent them my STR's from the reserves..."

But if VA was aware that this was an injury while in the Reserves they should have obtained them.

Make sure you send them copies only, and state on the  4138 exactly what is attached, and put your C file number , name address on each copy and total the submissions and get proof of mailing, if you are mailing this in...I am still not familiar enough with ebenefits to know if this stuff can be uploaded there...

Also I would put on the 4138, Attention To and then the Initials that appear in the alphanumeric code to the right top of the award letter from VA you got.

Those initials are the last person who looked at your claim and your c file  might still be on their desk.

A reconsideration request (more info here under a search) does not stop the NOD one year deadline but can prompt a better award if they dont stall on it.

If the VA DID have your Reserve STRs ( and listed them as Evidence but didn't use them to determine that part of the claim)

they have committed a CUE and you could file that too, stating they violated basic VA regs and case law, within 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."
 
CUE however is like the Watergate question...what did they know and when did they know it.
When VA knows of 'evidence' that affects the probative value to a claim and completely disregards it at all, they have 'manifested an altered outcome' to the veteran and have failed to render an equitable and legal decision.
 
There are always countless remands at the BVA due directly to VARO violations of this basic VA law.

 

Edited by Berta
Link to comment
Share on other sites

  • 0

A reconsideration is an excellent idea; however it doesn't stop the one year appeal period (Notice of Disagreement).

Be cognizant of the time frame.

 

Link to comment
Share on other sites

  • 0

I wouldn't listen to that lazy assed VS0 anymore, if I were you.

Submit what you have.....

"I should have sent them my STR's from the reserves..."

But if VA was aware that this was an injury while in the Reserves they should have obtained them.

Make sure you send them copies only, and state on the  4138 exactly what is attached, and put your C file number , name address on each copy and total the submissions and get proof of mailing, if you are mailing this in...I am still not familiar enough with ebenefits to know if this stuff can be uploaded there...

Also I would put on the 4138, Attention To and then the Initials that appear in the alphanumeric code to the right top of the award letter from VA you got.

Those initials are the last person who looked at your claim and your c file  might still be on their desk.

A reconsideration request (more info here under a search) does not stop the NOD one year deadline but can prompt a better award if they dont stall on it.

If the VA DID have your Reserve STRs ( and listed them as Evidence but didn't use them to determine that part of the claim)

they have committed a CUE and you could file that too, stating they violated basic VA regs and case law, within 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."
 
CUE however is like the Watergate question...what did they know and when did they know it.
When VA knows of 'evidence' that affects the probative value to a claim and completely disregards it at all, they have 'manifested an altered outcome' to the veteran and have failed to render an equitable and legal decision.
 
There are always countless remands at the BVA due directly to VARO violations of this basic VA law.

 

Hello Ma'am thanks for your reply and advice. 

Yes he was against the idea of me submitting without an LOD and gave me other advice like," You shouldn't rock the boat as if I should be satisfied with what i awarded and that the VA could come back and say quote, " Well you were right we can service connect you for your injuries but in the process we determined that your lower back issues should get better so you should be 10% instead of the 20% we awarded you."

Everytime I have been in there to talk to someone its as if they want to steer you in another direction or they don't really want to help you....so I ask myself what are they there for....seems to me like their there to stall, be counter productive and not help you fight for the denied disabilities.

"If the VA DID have your Reserve STRs ( and listed them as Evidence but didn't use them to determine that part of the claim)they have committed a CUE and you could file that too, stating they violated basic VA regs and case law, within 38 CFR 4.6:"§ 4.6 Evaluation of evidence."

In the award letter the evidence considered: 

VA examination, VA form 21-526 Veterans FDC, VA form21-0820 Report of General Info, STR's from May 17, 2001 through Aug 16, 2008 which is my AD service. No reserve STR's. Not sure why and if they were aware of injuries as a reservist.

Anyways hopefully they will acknowledge their oversight and I will post the details of the outcome.

 

 

 

Link to comment
Share on other sites

  • 0

I too have gone thru this Lod  issue and I was also a reservist injured while on at, Recently sent in a request for reconsideration along with quoting some va regs to when and when not a Lod  is required in the regs.it states that a Lod.  is required when there is substantive evidence of wilful misconduct.fight this, what Ro are you using.

Link to comment
Share on other sites

  • 0

Well Sir, I went ahead and sent everything certified return receipt. hope that they don't ignore the regs or stall and rule favorably and quickly. Good luck to you. My VARO is in Houston.

So you found the regs. I was talking about, It's pretty cut and dry.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use