TKR; Arthritis and in service fracture

[broncovet]

As you know I have answered a lot of hadit questions.  Now, its different when its on me, so Im the one asking.  

Background:  I had an in service leg fracture.  I applied for "Arthritis" which was never adjuticated.  Instead, a 2005 RO decision "rate sheet" listed arthritis as NSC, 10%.

Since VA never worked the claim, there was no C and P exam, and probably no nexus statement, but its possible or likely that I could get one.   

This means it was apparently denied and I was never given a RO decision.  

My Arthritis of the knee is worse and will require both Knees replaced, according to my VA ortho doc.  As you may know, Im at 100%, but an additional 100% convalscent would yield SMC S, for a year, or maybe 2 years, as both knees need replaced.  The extra 8000 or so for SMC S would come in handy right now.   A VA employee recommended "reapplying" for arthritis.  

Question:  Considering that I have hired an attorney to appeal to the CAVC, should I go ahead and reapply for arthritis, or should I wait for the outcome at CAVC?  

Im not sure if it would tick off my attorney by applying for a new issue or not.  

[iceturkee]

reapply if it was 2005?

[broncovet]

That's what I thought, when he said it, Iceturkee.  It sounded like he wanted me to sabatoge my 2005 effective date, giving VA and excuse to make it later.  Why dont they just adjuticate it now, and admit they made a mistake overlooking it for 11 years?  

[iceturkee]

bronco, wouldn't this warrant a CUE?

[Berta]

Broncovet stated:

"Background:  I had an in service leg fracture.  I applied for "Arthritis" which was never adjuticated.  Instead, a 2005 RO decision "rate sheet" listed arthritis as NSC, 10%.

Since VA never worked the claim, there was no C and P exam, and probably no nexus statement, but its possible or likely that I could get one.   

This means it was apparently denied and I was never given a RO decision."

I see that differently Broncovet...

I feel that, in fact, they did adjudicate the claim, and determined it was not SC, and that itself (NSC designation) is a denial.

"Question:  Considering that I have hired an attorney to appeal to the CAVC, should I go ahead and reapply for arthritis, or should I wait for the outcome at CAVC?  

Im not sure if it would tick off my attorney by applying for a new issue or not.  "

What has the attorney said about that? I don't see how it would matter if you re -opened that arthritis claim,because the CAVC appeal (as far as I know) would have nothing to do with any new claim.

Still you would need a nexus to your service for the arthritis. Then if that claim is successful, you could certainly CUE the NSC 10% decision.

These are the simplest kind of CUEs to succeed in, in my personal experience:

Posthumous 10% HBP NSC rating.1998

I filed CUE on that -forget when-

Award for 1151 as if SC in 2012, based on one piece of evidence.The VA had this evidence at time of the 1998 decision.

The 1998 decision contained about 4 CUEs.

It just makes sense....if a vet gets a SC award for something VA rated at least at 10% in the past ,but deemed the same disability  as NSC, that is a situation ripe for a CUE,.....but that also is  based on the evidence they had at time of the NSC decision.

 

 

 

[Buck52]

Does it make any difference being a NSC?

A lot of us Vietnam Veterans sure messed up , when we got hurt we just sucked it up and never went  and recieved medical help back in those days, I fell off a Duce &Half front bumper landed on both knees, I got some pain meds from the medic but it was never log down, but my knees turn blue & purplish for about 2 weeks  and I was in a lot of pain  but I just endured it...if I had known  then what I know now  hell yes I'd reported it.

Now years later I have arthritics in both my knees , I believe that's why because of that but can't get it service connected, most of my buddys from back then have either passed on or I can't find any of them  so no proof  my word only and with the VA that's not good enough...Hell who would think to take a pic of my knees eh!

Reason I mention that about a pic?  I took a pic of one of my unit awards from Nam that was not on my DD-214  and submitted that and the VA used it as part of my Vietnam service to place me at a certain Hostile Area in Nam that also was not on DD-214  It has my full name ,rank an unit/company engraved on it. 

 many veterans that are disabled today that can't get an award or claim S.C. because we never reported a lot of shi** that happen to us over there.

is a crying shame

........Buck

Edited May 24, 2016 by Buck52

[broncovet]

Thank you for your responses.

Berta posted:

"I feel that, in fact, they did adjudicate the claim, and determined it was not SC, and that itself (NSC designation) is a denial."

Yes, its a form of deemed denial, where they did not give a reasons and bases for denial, and did not mention a denial.  Its a Colvin violation for VA to fail to give a reasons and bases for denial.  

Since it was not formallly adjucticated, as per 38 CFR 3.103, I would posit that the claim remains pending, that is, the one year appeal period is tolled as I never received notice of the decision:

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.

(b) The right to notice—

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

Edited May 24, 2016 by broncovet