Unadjudicated claims and EED

[Atlcocky]

First time poster. Forgive me if it's not very good!

I want to find out the best way to attack a claim and EED issue.  I have informally and formally requested a nerve condition claim (mainly neck, arm and hand). The condition was in my service medical records and missed or ignored when I got denied for the back, neck and shoulder issues back in 1996. Since separation, I have sent them several documents stating that I have a nerve problem. The American Legion has sent them a request to adjudicate the nerve condition. It is also mentioned in a SSOC and on a C & P exam. I believe that I have an extremely strong case on the service connection part. On the EED, should I just file the claim knowing that I will appeal or fight it on CUE? or is there a way to fight for the EED in the initial claim request?

 

I have been reading the court proceeding on Implicit denial and pending claim doctrine. I still can't figure out if there is a way to get the EED upfront without the long drawn out CUE or appeal process.

 

Thank you all for the information on the site and the hours many of you put into making it better everyday. I hope to be an aid to someone some day.

[Buck52]

JMO here but it sounds like you may be in for a long wait to the BVA AND REMANDS

IF you don't have a good attorney  you need to find one.

[Berta]

" I believe this falls under the 'unadjudicated claim doctrine' which has affected the effective date for this disability. I believe that if the VA would have reviewed/acknowledged the request and sent me to the appropriate doctors, I would had this claim approved years ago."

You say " request" but was this a formal claim  filed in 1996?

Do you have a copy of it and proof they got it?

 

Succeedful EED claims usually always rest on 38 CFR 3.156 or on CUE ( 38 USC 5109).

38 CFR 3.156 is here:

 

Plenty on CUE as well under a hadit search.

The older claim would certainly be in your C file if they got it as well any attempts they made to find you if they sent you letters that were returned to them if you had moved.

 

 

Edited May 24, 2018 by Berta

[Atlcocky]

3 hours ago, Buck52 said:

JMO here but it sounds like you may be in for a long wait to the BVA AND REMANDS

IF you don't have a good attorney  you need to find one.

That is so disappointing it's not funny. I never expect anything to happen quick with the VA but hiring an attorney was never a consideration until now. 

[Atlcocky]

53 minutes ago, Berta said:

" I believe this falls under the 'unadjudicated claim doctrine' which has affected the effective date for this disability. I believe that if the VA would have reviewed/acknowledged the request and sent me to the appropriate doctors, I would had this claim approved years ago."

You say " request" but was this a formal claim  filed in 1996?

Do you have a copy of it and proof they got it?

 

Succeedful EED claims usually always rest on 38 CFR 3.156 or on CUE ( 38 USC 5109).

38 CFR 3.156 is here:

 

Plenty on CUE as well under a hadit search.

The older claim would certainly be in your C file if they got it as well any attempts they made to find you if they sent you letters that were returned to them if you had moved.

 

 

When I separated, I submitted my original claim where I asked for a rating for my neck, back and left shoulder. Since that time, on at least one SSOC, we requested that the VA adjudicate the nerve claim. They rated me for a shoulder condition but ignored the nerve condition requested. I have documented evidence of a nerve issue date prior to my separation and since then. It is in my VA medical records and in private medical records submitted to the VA. 

Here is the initial write up that have been working on to submit of form 21-4138:

I am a honorably discharged veteran. I have an Unadjudicated Claim Radiculopathy/Nerve Damage) that has not been acted on by previous Regional offices (Atlanta [1996], Montgomery [1996-99], Louisville [1999-2003] and Atlanta [2003-present]), the Appeals Management Center and the Board of Veterans Appeals. This claim originated prior to my separation from the USAF and continues through today. Some of the highlights of this claim are as follows (complete chronology will be included):
1) January 27, 1989 – Paravertebral trigger pt t12 level, bilateral (Military Service Records)
2) September 14, 1990 – Cervical injury in Auto accident  (Military Service Records)
3) 1995 – Several reports of Radiculopathy (Physical Therapy and office notes)
4) September 2, 1997 – First report after separation from USAF (HealthSouth)
5) October 24, 2000 – VA Compensation report and Supplemental Statement of Case
6) April 17, 2003 – Numbness and tingling (Requested Adjudication for this on VA Form 646-Statement of Accredited Representative in Appeal -Page 2, Para 3)
7) April 30, 2004 – Numbness and Tingling (Letter to AMC. Specifically requested Adjudication)
Nov 5, 2005 – Numbness and tingling (Letter dated Nov 8, 2005, requesting adjudication of the claim)
9) Jan 30, 2006 – American Legion Written Brief Presentation to BVA on my behalf. It is law that the veteran is requesting the maximum benefit to include adjudication of unclaimed disability. It states that the issue cannot be ignored.

Complicating this Unadjudicated Claim for Radiculopathy is the fact that it is inextricably intertwined with a Spinal issue. I was denied disability for both Cervical Strain and Back Condition as “Not Service Connected, Not incurred/Caused by Service”. Because the Nerve issues were totally and completely ignored in the initial VA exam (No spinal xrays, EMG or any test/discussion about the nerve damage), this very likely led to the denial of my claim. I believe if this Radiculopathy claim had been adjudicated from the start, I would have also been service connected for the Cervical Strain. 

Based on clear evidence that I suffered a neck (cervical) injury while I was on active duty (1990) and a long history of numbness and tingling (Radiculopathy) in my arms and fingers, I believe I should be Service Connected for Bi-lateral Cervical Radiculopathy (Neuralgia – Code 8716 Ulnar Nerve and/or Code 8712 Lower Radial Group) and Code 5237: Lumbosacral or cervical strain and/or Code 5238: Spinal stenosis—the spinal column narrows and presses on the spinal cord or nerves. My evidence will show the gradual degradation of my condition. 

My request:
A full adjudication of my claim for Nerve Damage/Radiculopathy in my arms, hand and fingers that has been pending since my original claim for benefits in 1996. 
 

 

[Buck52]

1 hour ago, Atlcocky said:

That is so disappointing it's not funny. I never expect anything to happen quick with the VA but hiring an attorney was never a consideration until now. 

Yes I realize its not funny  just trying to prepare you...and remember this is just my opinion it may not be that way , just depends on how the raters read and if they read.

  but unfortuanately VA will fight you on this  or give you a lowball rating/decision on the 1996 FILING DATE.

[Atlcocky]

Hello all again. My C-file should be hear this week. I will go thru it with a fine tooth comb to find and verify that there is evidence in the file to indicate that I requested adjudication (official and unofficial) on my nerve issue as far back as 1996 (since service connected, May 2017) and two, the VA did not adjudicate the claim and it is still pending.

I believe I have a firm understanding of the Adjudicated and/or pending claim doctrine's. However, I am looking for opinion from you all as to whether or not I should find an attorney to handle this or should I write it up myself and give it to an attorney if the appeal is denied. I write fairly well concerning claims and appeals, but because this could be a 5/6 figure back pay claim, I don't want to screw it up to where it can't be fixed.

I know it is will not happen quickly, but I would like to have it written up very well and do it the right way. 

 

Questions are:

1. Should I give a complete write up when I send in the NOD about the EED?

2. If not, what should be included with the NOD, other than, 'I would like to appeal....'?

3. If so, are there any downside to the complete write up? ie, if I don't include something, can I add it later? Am I penalized if something is not included in the initial filing of the NOD?

4. In the write up of the NOD, how much detail should I go into about the appeal? ie, should I trace it from the beginning to include all my submissions and what the VA responded with in their correspondence back to me? or just show them the dates when the claim was both unofficially and officially claimed.

 

Long post here, I'm sorry. I am hoping to start the process next week or start looking for an attorney. By the way, How much do attorney's usually charge for something like this?

 

Thank you all