cervical strain Submitting new evidence...No LOD

[All-American Airman]

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 September 5, 2015 by All-American Airman

[All-American Airman]

 

Yes Sir I did do a search and your right no willful misconduct or anything forbidden by law was done on my part. Thanks.

 

[All-American Airman]

UPDATE

On Sept 6, 2015 I was seeking a reconsideration request and sent in new and pertaining evidence from STR's in the Reserves, 4138( which clearly states my intention that this evidence is new and was not used by the rater, and private physician records to seek service connection on my initial claim for neck pain, upper back cervical condition, and opened a secondary radiculopathy left arm.The mistake I made was sending it to the Claims Intake Center instead of the Evidence Intake Center in Janesville, WI. I was confused on the address since they are almost alike. Go figure just what the VA wants. 

I then received a develop letter in a BBE from the Evidence Intake Center 9/18/15 stating,

"We received your correspondence indicating that you would like to file a claim for benefits. VA regulations now require all claims to be submitted on a standardized form."

"In order for us to begin processing your claim, you must submit an application for benefits. If you do not feel ready to submit your claim, you may also submit an intent to file identifying the general benefit you are seeking." This is ridiculous! 

9/26/2015: I thought well ebenefts my be a quicker option so I went in and reopened these contentions that were denied and submitted all this evidence of about 84 pages.

9/28/2015: I received another development letter from the Houston VARO, " We have received your application for benefits. It is our desire to decide your case promptly. However as we have a great number of claims, action on yours may be delayed. We are now in the process of deciding whether additional evidence or info is needed. 

 I dont recall the individual time frame for each stage so I watched for almost 4 months and waited patiently on ebenefits how the timeliine went claim received, under review, gathering evidence, review of evidence, preparation of decision, pending decision approval, preparation for notification, I would also see a prompt (documents are overdue) in red which was on their as they were not request for documents from me. 

1/20/2016: Decision Letter from Evidence Intake Center Janesville WI in BBE received states," We made a decision regarding your entitlement. Your claim was not processed under the Fully Developed Claim (FDC) because you elected to opt out of the program. This letter tells you what we decided. It gives the evidence used and reasons for our decision. We have also included info about what to do if you disagree with our decision and who to contact if you have questions or need assistance. Of course they reopened the contentions neck pain, upper back cervical condition, radiculopathy left arm, and then denied  them both w/ typical statements, condition was not incurred in or aggravated by military service. Evidence considered VA rating decision and all evidence listed on this decision, 3/17/2015(C&P exam). Private Treatment records 2/3/2015, VA form 21-526 EZ: Application for disability comp and related comp benefits 9/26/2015(ebenefits) Service Treatment records 12/8/2008.(Where they got this date from is beyond me?) USAF Reserve STR's I submitted when I had an accident leading to the neck upper back cervical issues that were diagnosed as cervicalgia are clearly from 2011.

Well I procrastinated and the March 19 2015 is the date on the initial decision on the Houston VARO's decision letter to file my Notice of Disagreement (NOD). I faxed in my NOD and appealing the ruling on 6 denied issues, neck pain upper back cervical condition, radiculopathy left arm,  I mailed it in with the 84 pages of evidence that I was hoping to have my reconsideration granted to the Evidence intake center today overnight express certified return receipt. The only questions I have on this is: Does the NOD have to be received by them prior to the 19th. Or does it have to be postmarked before this date. Thanks to all who would like to comment or provide insight. 

So much for the VA' s duty to assist me! They totally screwed around, and ignored all the evidence....well I'm privy now to the games. How they get away with this is incomprehensible! I share with you all the same sentiment ...disgust ,same frustration with them. (Cliche vent) They are out of touch and have no remorse for their actions. I've just begun my fight and I'm in it to win it and will not give in or give up. I've got all the time in the world.

Thanks to all who would like to comment or provide insight. 

[Berta]

I had to edit this right away....I  first thought Feb leap year would give you an extra day but it doesn't....

 

 

 

You need to go over the timeframe with a 2015 and 2016 calendar.

 

4.  Time Limits for Filing an NOD, Continued

 

b.  Computing the NOD Time Limit

When computing the NOD time limit   ·   exclude the first day of the specified period ·   include the last day of the specified period, and ·   if the time limit expires on a Saturday, Sunday, or legal holiday, include the next workday in the computation.   If the postmark date is   ·   prior to the expiration of the NOD period -  consider the NOD timely filed, and -  retain the postmarked envelope, or ·   not of record, presume the postmark date to be five days prior to the date VA received the NOD, excluding Saturday, Sundays, and legal holidays.

 

c.  Informing the Appellant of an NOD That Was Not Timely Filed

If an appellant files an NOD past the time limit   ·   inform the appellant via letter, and ·   send VA Form 4107, Your Rights to Appeal Our Decision, with the letter.   The issue that an NOD was not timely filed is, itself, appealable to the Board of Veterans’ Appeals (BVA).  See M21-1MR, Part I, 5.B.5.d.

 

d.  Handling a Time Limit Extension Request

An appellant may request an extension of the time limit for filing an NOD.   In this situation, the time limit may be extended if the appellant shows good cause.  38 C.F.R § 3.109 provides that a request to extend the time limit may be made either before or after the expiration of the NOD period, although this regulation does not define good cause.   An appellant may appeal a denial of a request for a time limit extension to BVA.

(M21-1MR, Part ii, Chapter 5, Section B)

Edited March 18, 2016 by Berta

[Buck52]

Great Info here Ms berta

Thanks for sharing

................Buck

[All-American Airman]

Ms. Berta, thank you so much for sharing that info, after calculating the deadline, from the initial decision 3/19/15. Today 3/18/2016 is the last day of the one year appellate deadline. So I'm good.

I faxed my NOD and evidence on 3/16/16.

Just in case I also mailed it in certified to Evidence Intake yesterday postmarked 3/17/16...they should receive it today.

I knew it would be close, but I thank God I was able to get it done before the deadline. 

I thought I had it in the bag for a reconsideration and was content to not file a NOD if they would have granted service connection just for the cervical issues and left arm radiculopathy.... which prob would have put me at 80%.

Lesson learned. I'm considering hiring a lawyer. Thanks again Ma'am and God bless you for all you do for everyone here.

 

 

 

 

  

 

Edited March 18, 2016 by All-American Airman
edited wording on deadline sentence.