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Rated "Not Service Connected" what can i do?

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Cobra4v

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    When my Active Duty contract ended in 2012 I met with a benefit's rep who started notating issues I was going to claim. Among those issues was Restless Leg Syndrome. Once I departed from the service, I was sent a letter which advised medical record's were needed as evidence for my claim's. At the time, I didn't have my record and contacted the VA advising I would not be claiming RLS because I didn't have documentation. I was advised by a VA rep I could reopen the claim at any time. RLS showed as "Not Service Connected" in my E benefits profile. 

    Once I obtained my records, I sorted through and obtained the medical record showing the complaint of RLS along with the sleep study. I reopened the claim in the beginning of March and it now shows in my "History" folder as completed. A browse through my E Benefits profile under Disabilities shows Not Service Connected. I investigated further and went under New Claim to check my active disabilities and RLS still shows as Not Service Connected. There is no "Effective Date" notated under the Disabilities section for this issue. I contacted the VA and inquired about my rating which has not changed. The counselor advised the letter was mailed to me today.

 

    At this point it looks as if they did not approve my claim. I am wondering if it wasn't approved because of the time frame which the claim sat.

What options do I have from this point? 

Edited by Cobra4v
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Cobra4v, this is just an idea, but do you still have the letter you were sent advising you need to obtain your service treatment recs shortly after your discharge(when you filed original claims?). If you do, or if the VA rep who advised you that you could reopen your rls claim is still around, i would write up a statement that you DID file within one year of discharge, and had to wait to proceed with the claim until you received your strs. I would not give up, the VA knows that you did try to file within the one year period, have you been receiving treatment for the Restless Leg Syndrome since service?

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I attached the letter with my claim. As I did for the TMJ claim I had completed prior to this. The issue is I was mistaken on the timeframe. I thought it was within one year of your inactive reserve discharge. I guess it was one year from the date of the letter which I received in 2012. Which is conflicting because I received a rating for TMJ which was originally not service connected.

I haven't been keeping up to date with the VA. I go privately for treatment. (Records were provided) Seems all the VA wants to do is physical therapy and muscle relaxers. (Referring to other injuries) 

I have been making more of an appearance at my center. But It's hard to drive to my clinic and do physical therapy when I work a full time job. Or have to wait extended periods of time to see my PC for a complaint only to be provided muscle relaxers and a referral to physical therapy. 

At this point I just want them to recognize this is service connected. Since it happened when I was in the service it should be. I would like to know I have options available for care in the future. Especially if it develops into something worse. 

Edited by Cobra4v
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I understand, Cobra4v, DONT GIVE UP!! Keep fighting. I waited NINE years after discharge to file for systemic lupus, it was diagnosed in service but I had no clue what it could do to me. When it started getting really bad, I filed, and though it took six years, I won. You can too!!

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  • Moderator

We have discussed "deemed" denials in the past.  A deemed denial is where the Veteran gets a decision but one or more issues were not adjuticated.  That issue is "deemed denied".  It sounds like your issues were adjutciated (that is, denied), and the VA violated 38 CFR 3.103 which states:

3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.
end of regulation quote.
The above statement is not ambigious.  You are entitled to written notice.  Period.  I believe it is CUE for VA not to give you written decision, or, in your case to "rate" you NSC. However, the CAVC does not see it this way.  They think its perfectly fine for the Vet not to get a decision and he should assume its been denied and the appeal period begins to run.  
The CAVC has "weakened" their stance on this, and now says, to the effect, that it is "deemed denied" only when the Veteran could have read into the decision that it was denied.   Now, that is ambigious.  When case law conflicts with the regualtion, the place to sort that out is the Federal Circuit, or, as Alex calls it, the Federal Circus.   Look carefully at your decision, that is, your "non adjutication" of this NSC issue.  See if it mentions this issue.  The VA likes to say, (a lie)  "We did not get a claim for xx issue."  
Ok, so why did you deny the issue if you never got the claim, bonehead?  Do you go around denying claims Veterans never submit?  
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Thank you for all of the information here. I'm still waiting on my letter from the VA. I contacted a VSO but still haven't heard back. Today was a fun filled day of running around at the VA. But I finally got them to set up a new sleep study which I hope will support my RLS claim and SA. 

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