tdiu 2 Claims closed/2 NODs?

[Tfresh]

Hello fellow veterans.  I am in need of some advice on how to proceed with my NOD/DRO. Hopefully I can explain what happened without being confusing. I had a knee claim that was in adminstrative review for 2 years based on an error code. I filed a new claim during the time the admin review claim was open, and it was partially decided resulting in a 90 % rating.  The claim was left open for an RSVR inferred TDIU. When this claim was partially decided, they closed my admin review knee claim without giving a rating, and the 90% decision letter said "knee claim with error code is referred back to RO of origin for development" After many calls and letters that my knee claim had simply closed with no rating, they finally added it on to the existing open claim with the inferred TDIU. I chose not to pursue TDIU based on being so close to shedular 100%.

I did not receive a rating on my knee because I made the mistake of not scheduling my C & P when the VA called to do so in leui of submitting my private doc DBQ.   So the claim that resulted in the 90% rating was also closed. There are several contentions I am asking to be reviewed on the 90% claim, two of which I have new and material evidence. I have new and material evidence for my knee as well.

My question is, when I go to file NOD/DRO, should I file two separate NODs---one for error code admin review knee claim that closed without a rating, and another for the other three issues on the 90 % claim, or should I just do them all on the 90% claim NOD since the knee was also put onto that claim? 

I am asking because I wonder if it might be quicker to get a DRO review on a NOD based on a error code on a claim. I feel that they wrongly closed the admin review claim without making a decision that was based on error. Of course, rating it would have lead to a 100% rating for me. So instead they just closed it. 

I am preparing to file my NOD/DRO this week, and any advice would be greatly appreciated.  Should I file a separate CUE on the knee admin review claim? Basically it was that the DBQ said torn meniscus, and they only gave a ROM rating, and did not give the knee a rating based on torn meniscus after a meniscectomy (10% based on code 5259)

[broncovet]

If you look at the NOD form, you will see that you need to identify "the decision date".  So, you file a nod disputing the decision you have recieved.  You can not dispute a "non decision".    A claim has to be finally decided before you can dispute it.   

If its any consolation, I agree that many times VA makes a "non decision" or a decision NOT to make a decision.  However, since you have apparently gotten a decision, then file a NOD.  You can also dispute "unaddressed issues".  

I think you should have taken the TDIU if its offered.  Beleive me, no one at the grocery store will ask, "Now is this money from TDIU, or is it from a shedular 100% rating?"  

[Tfresh]

Thanks  broncovet. Yes, I see that place on the NOD where you have to put the decision date. I think the DRO will look at that admin review with all of the medical evidence on the knee since they have to review everything. I think I read from you or another that really its all "One VA claim that starts the minute you are service connected." 

Maybe I should have folllowed through with the TDIU. Nothing to be done about it now..I will wait for the appeal decision after I file for it. I have learned much by reading through posts here on what to do now. Its just been a long journey, and it continues. I wont stop until I get all my ratings right, since now I have all my SC's.  

[Tfresh]

any other advice on NOD/DRO would be appreciated.

Edited July 18, 2016 by Tfresh
question changed

[Navy4life]

On 7/17/2016 at 10:12 AM, Tfresh said:

Hello fellow veterans.  I am in need of some advice on how to proceed with my NOD/DRO. Hopefully I can explain what happened without being confusing. I had a knee claim that was in adminstrative review for 2 years based on an error code. I filed a new claim during the time the admin review claim was open, and it was partially decided resulting in a 90 % rating.  The claim was left open for an RSVR inferred TDIU. When this claim was partially decided, they closed my admin review knee claim without giving a rating, and the 90% decision letter said "knee claim with error code is referred back to RO of origin for development" After many calls and letters that my knee claim had simply closed with no rating, they finally added it on to the existing open claim with the inferred TDIU. I chose not to pursue TDIU based on being so close to shedular 100%.

I did not receive a rating on my knee because I made the mistake of not scheduling my C & P when the VA called to do so in leui of submitting my private doc DBQ.   So the claim that resulted in the 90% rating was also closed. There are several contentions I am asking to be reviewed on the 90% claim, two of which I have new and material evidence. I have new and material evidence for my knee as well.

My question is, when I go to file NOD/DRO, should I file two separate NODs---one for error code admin review knee claim that closed without a rating, and another for the other three issues on the 90 % claim, or should I just do them all on the 90% claim NOD since the knee was also put onto that claim? 

I am asking because I wonder if it might be quicker to get a DRO review on a NOD based on a error code on a claim. I feel that they wrongly closed the admin review claim without making a decision that was based on error. Of course, rating it would have lead to a 100% rating for me. So instead they just closed it. 

I am preparing to file my NOD/DRO this week, and any advice would be greatly appreciated.  Should I file a separate CUE on the knee admin review claim? Basically it was that the DBQ said torn meniscus, and they only gave a ROM rating, and did not give the knee a rating based on torn meniscus after a meniscectomy (10% based on code 5259)

I am confused???  You chose not to pursue your knee claim?  What are you filing an NOD on? A CUE is very hard to get approved and you must prove the VA erroneously erred on their part. You can't file a CUE on a "non-decision" so I am not sure what the CUE is here? Are you saying you felt the error was on the rating code or the VA?

If and when you do file an NOD, you better be sure you request a hearing on the NOD.  If not, the DRO has no obligation to have you come and talk to them.  They can review the NOD w/o you present.  Too many veterans miss this request when filling out an NOD.

[Tfresh]

I was pursuing the knee claim, but I had a DBQ to submit from a private provider instead of the VA exam, which I read that I could do. When I didnt schedule the exam when the VAMC called me, they closed the claim.  I have had horrible experiences with VA C & P exams, and all the contentions that brought me to the 90 % were from DBQs from my private physician. VA didn't schedule exams. When they added the knee claim, they scheduled an exam. 

I chose not to pursue the inferred TDIU right now because I am very close to 100% schedular with several different issues.

About the DRO hearing. I have read that it takes a lot more time in an appeal to actually get a hearing ?  

About the CUE--yes I know they are hard to prove, but there was already an error code on the knee claim, but they closed it without giving a rating, then added the knee onto the new claim. 

Anyway, I have very strong medical evidence with my knee from VA medical, so Im not sure I will ask for a hearing. 

Question:  when you write your DRO appeal, besides including why I think the issue should be rated differently, do you also include what is going on with the issue such as symptoms, etc? Is there a DRO appeal letter template somewhere ?

[Navy4life]

52 minutes ago, Tfresh said:

I was pursuing the knee claim, but I had a DBQ to submit from a private provider instead of the VA exam, which I read that I could do. When I didnt schedule the exam when the VAMC called me, they closed the claim.  I have had horrible experiences with VA C & P exams, and all the contentions that brought me to the 90 % were from DBQs from my private physician. VA didn't schedule exams. When they added the knee claim, they scheduled an exam. 

You should have done the C&P exam.  The VA has the legal right to do so and since you opted NOT to do the C&P exam that gave the VA the right to deny your claim.

52 minutes ago, Tfresh said:

About the DRO hearing. I have read that it takes a lot more time in an appeal to actually get a hearing ?  

You are talking apples/oranges here!  A DRO review hearing is NOT a traditional appeal hearing.  Requesting a DRO hearing on your NOD is the best way to get to speak to a DRO in person and plead your case.  I just had mine and glad I went with the DRO informal hearing.

52 minutes ago, Tfresh said:

Anyway, I have very strong medical evidence with my knee from VA medical, so Im not sure I will ask for a hearing. 

Okay that is your decision but what you think and what the VA thinks are TWO different game plans.  I would much rather be able to plead my case to the DRO then for him to simply just have p/w in front of him.

52 minutes ago, Tfresh said:

Question:  when you write your DRO appeal, besides including why I think the issue should be rated differently, do you also include what is going on with the issue such as symptoms, etc? Is there a DRO appeal letter template somewhere ?

In your NOD you explain why you feel that the denial is unjust.  Give all the evidence to support it and explain the entire situation. Again, this is why you should have a DRO hearing.

Edited July 19, 2016 by Navy4life