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VARO Reopens Numerous Claims

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63Charlie

Question

 

The VA, within the past year, has denied claims for my ankle condition-bilateral, flat foot-bilateral, cervical spine IVDS, scars, and TDIU.

I filed NODS on the above-styled denials, as well as other claims' denials including tinnitus, thoracolumbar IVDS, and another spine IVDS claim involving Section 1151..

 

VA has reopened the ankles, flat foot, cervical spine, scars, and TDIU..... plus reopened a claim for depression for which I already have a 50% rating.

I sent the VA new and material evidence in the form of my medical records from my podiatrist.

Not sure how it works when all these things get reopened like the VA has done.

Guess I wait and see what happens next?

Do NODS cause the VA to reopen claims?

 

Edited by 63Charlie
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A NOD COULD cause a claim to be reopened, but its not the only reason.  Claims are supposed to be reopened if new and material evidence is resubmitted, (see 38 CFR 3.156), and can be reopened administratively in the event of error.  

(Notice I did not use the term "CUE" error, as there are many errors that do not rise to the Cue standard of review, but still result in the Veteran getting lesser benefits than what he deserves).

As Berta has pointed out, Va does not always read our evidence.  Its called "top sheeting" the claim, where the rater looks at one or two pages, and then renders a decision without reading the entire claims file.  

Im "a little"  sympathetic as to why they do that.  My file is about 1500 plus pages long, and mine is definately not the longest one out there.  If it took just 2 minutes to read a page, that would mean it would take 50 hours just to read my file.  That wont be happening.  Oh, and the C and P doctor, also, who states he "reviewed my medical records" also did not do so, for the same reason.  

And, raters are supposed to put out multiple decisions in a day.    Likewise, C and P examiners often have multiple C and P exams in one day.  

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Why would the VA reopen the depression claim when I haven't filed a disagreement?

 

Edited by 63Charlie
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Do you have any of this in writing from VA?

Did you respond to the Statement of the Case with more evidence?

I don't understand the 're-open' factor here....VA might have picked a 're -open' date instead of the actual date of claim and base any retro on that, which may or may not be the correct date...and might snooker you out of some cash....

What I mean is Nehmer gave me an EED for my husband's AO IHD, for about 2 months after the documented medical evidence showed he had IHD. Since this was a malpractice issue, VA had to use a C & P exam in 1988 to try to determine the EED. The NVLSP lawyer said I should be happy with the EED. The 1988 C & P exam was for PTSD. The VA in his lifetime had never diagnosed or treated the IHD.

I let that go as to the 2 months, because I had other problems with the decision to appeal, but I still believe the ER cert should have been the EED date. This was technically not a re open but one way VA can get out of a proper retro date,.

That exam was how VA lowered his then 30% SC for PTSD to 10% and I wrote a scathing NOD with the same regs they used against him and they fixed that within about 8 months. It was the second C & P exam because they could not find his med recs during the first exam ,which also had a some bogus result,and I raised that error with them right away ( I testified that I was an eye witness to the nurses looking all over for his records) so he got the second C & P.

Re-open, to me, means a claim was denied and then N & M evidence was presented to cause them to re-open.  I don't know how they can re -open a claim that, from what you say, seems to be open already.???

Maybe they Reconsidered ???????

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1 hour ago, 63Charlie said:

Why would the VA reopen the depression claim when I haven't filed a disagreement?

If the percentage was marked as temporary, i.e. expected to improve, then they can do this.

If you have not had the 50% rating for 5+ years, they VA sometimes just does it. After 5 years of the same percentage, the VA must prove sustained improvement in order to try to reduce.

 

Personally, I would rather see the VA shift personnel towards legitimate claims and away from unsolicited reopening of claims.

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Rated Disabilities

Disability Rating Decision Related To Effective Date
cervical spine condition   Not Service Connected    
tinnitus   Not Service Connected    

hearing loss secondary to tinnitus 

  Not Service Connected    
spine condition   1151 Denied    
post traumatic stress disorder (PTSD) due to personal trauma including alcohol abuse   Not Service Connected    
depressive and anxiety disorder other specified 50% Service Connected   08/19/2015
cystic acne, claimed as skin condition on face and neck 10% Service Connected   04/06/2016

cystic acne scars, on face and neck 

0% Service Connected   04/06/2016
allergic rhinitis 30% Service Connected   07/24/2016
flat foot conditions, also claimed cuboid syndrome   Not Service Connected    

Pending Disabilities

Disability Submitted Type Actions
Depressive And Anxiety Disorder Other Specified 09/26/2016 NEW  
Individual Unemployability 09/26/2016 NEW  
Bilateral Tinnitus 09/26/2016 NEW  
Flat Foot 09/23/2016 REP  
Cervical Spine 09/23/2016 REP  
Cystic Acne Scars 09/23/2016 REP  
Iu 09/23/2016 REP  
Acne 09/12/2016 NEW  
Scar 09/12/2016 NEW  
Rhinitis 09/12/2016 NEW  
Spine 09/12/2016 NEW  
Bilateral Radiculopathy/ankles (secondary To Ankle Condition, Bilateral) 09/12/2016 NEW  
Chronic Ankle Strain  09/12/2016 SEC  
Bilateral Chronic Capsulitis Of The Ankles (secondary To Ankle Condition Bilateral) 09/12/2016 NEW  
Bilateral Chronic Capsulitis Of The Subtalar Joints (secondary To Ankle Condition, Bilateral) 09/12/2016 NEW  
Flat Foot Conditon, Also Claimed As Cuboid Syndrome Now Claimed As Excessive Pronation Secondary To Ankle Condition, Bilateral And Bilateral Sinus Tarsi Syndrome Secondary To Ankle Condition Bilateral 09/12/2016 REP  
Bilateral Plantar Fascitis Secondary To Ankle Condition, Bilateral 09/12/2016 NEW  
Total Disability Individual Unemployability  09/12/2016 SEC  
Ankle Condition Bilateral 09/12/2016 NEW  
Entitlement To Compensation Under 38 U.s.c. 1151 For Spine Condition 05/19/2016 NEW  
Edited by 63Charlie
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