diabetes How to file unadjudicated claim.

[syne7]

I was medically discharged from the army in 1997.  I got SC 10% for Asthma & SC 0% for limitations of motion in left ankle.

I never appealed or filed a NOD. 

In 1998 I was diagnosed with diabetes t2.  A few years later friends mentioned I should go to the VA and see if my diabetes was service connected.

I called the VA and they told me to send them a letter.  I sent the following (which was part of my c-file in September).

This is what I sent (Stamped received 5/7/01 in my file and they never replied to me:

((VA Waco Office Adress))

Hello,

I would like to ask that my claim for service connected disability be re-opened.  I have recently been diagnosed with diabetes.  I would like to request that my service medical records be examined, specifically blood tests etc... that may show a high glucose level in my blood or other indications of diabetes.  My intent is to see if perhaps I may have developed this condition while I was in the military and apply for the appropriate level of VA benefits. 

Here is my administrative info:

XXXXXXXX
xxxxxxxxxx

My VA file number is XXX-XXX-XXXX

My current Doctor is:

((Name address and contact info for doc with phone))

Thanks in advance for your help and consideration.

 

Does this look like I have an adjudicated claim?

I am filing for upgrades and other new stuff in an FDC.  Do I just include this and summary declaring an adjudicated claim?

 

THanks

 

[ketchup56]

Absolutely you have an unadjudicated claim/s that as of today if va has never responded.When va finally responds to your reopened request your earliest effective date IF awarded is definitely 05/07/2001.  As another reminder this is the same time frame that the newly VCAA became law. Use it to your advantage if needed. Your research start should be to read and COMPREHEND Ingram v Nicholson /Roberson v Principi /Comer v Peake and the "Pending Claim Doctrine " also written by two fine bva attorneys that really understand these types of claims. (Early Effective Dates of claims).  Va almost always squirms when they get legitimate claims such as these...I think I know .I have one currently awaiting a review at bva for early effective date of service back to 1983...Study these cases and submit your case as outlined in these earlier cases you'll  win .   JMHO 

[syne7]

THe real problem is that doctors records are not kept for more than 5 -7 years.  I have I only have records showing prescriptions for Metformin around 2005.  Though some records show my diagnosis date at of 3/18/1998.

I am going to try to make up the difference with buddy/relative statements.  If they accept 3/18/1998 at the potential diagnosis date.  I should win on presumption.

This may be tough.

 

[broncovet]

Syne:

Since this is part of your Cfile, it certainly looks like a claim to reopen due to 3.156.   But, read 3.156 carefully, paying particular attention to the highlgheted portions:

3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

 

[broncovet]

Expect the VA to fight you on the issue in 3.156 C (2), highlighted above.  

Have you been awarded said disability and are seeking an EED?  Remember, 3.156 is mostly a tool to get an EED, not to get Service connection or a higher disability percentage.  To get SC, you still need the big 3 of current diagnosis, in service event or aggravation, and nexus.  The idea is, if VA failed to get your evidence, then, if you do win sc, you can get it at an earlier date with a reopen.  

You have to do it in order:

1.  Establish eligibility.

2.  Establish Service connection.

3.  Establish a disability percentage.

4. Establish an effective date. 

    The effective date does not matter, and wont be addressed, if sc is denied.  You have to get these in the order above.  

[syne7]

I am not seeked EED.  The letter was never responded to. So the VA never made a decision or scheduled a C&P exam.  

They never contacted the doctor I gave them in the letter and he has moved on.

My hope is the resolve this claim and have an effective date of 2001.  I have no medical records from this period.  However I do have some from 2005.

 

Edited April 8, 2016 by syne7

[syne7]

I was discharged on 5/11/1997.  I was diagnosed on 3/18/1998.

I believe he presmption period would apply and could also claim secondary to Asthma as a backup.

However, I sent the letter in 2001 and go no response.

I am now learning about how to do disability in 2016 :(.  I have learned doctors don't keep records if you aren't a steady patient for more than 6 or 7 years depending on state.

The VA never contacted my doctor at the time in 2001 and never replied to me.

I do have sword statements from several buddies identify symptions (thirst and execesive urination), one statement from a co-worker who went with me to pick up a glucometer when I was diagnosed in 1998, a hand out the nurse gave me about diabetes, and a journal.

Not sure if that will be enough, but won't hurt.