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.

[broncovet]

1.  Yes, "give a complete writeup" on your NOD form (attaching extra pages to the NOD form, if necessary).  

Try to refute the VARO's reasons and bases for the effective date, and show that you either applied earlier, or otherwise met an earlier effective date critieria, that the VARO may have overlooked.  Read this, and see which, if any, applies to your claim:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

Yes, it may take some reading and studying your cflie to understand if this applies to you.  Dont "once over" the link I posted, but rather read it carefully to see which of these applies to you.  Dont make your reasons for a nod long like a book, just be sure and cover all "entitlement theories".  

2.  Focus on the criteria, your decision, and the purple heart effective date errors. Cite the case law they cite, not the purple heart.  

3.  Yes, you can file it later, but yes, VA loves to lose stuff, so if you do a great job, you should not have to do it over.  

4.  If this is an appeal for the effective date, stick to things related to the effective date.  Its all about the criteria, and understand the effective date rules:  Your effective date is the later of the facts found or date of claim, with exceptions covered in the purple heart link.  

 

[Atlcocky]

Hey Bronco,

Thanks as always. Initially, I believe the section discussing I formal/I referred claims will be the correct route for me (more research to follow). It does concern me how this decision:       

[But see Deshotel v. Nicholson, 457 F.3d 1258But see Deshotel v. Nicholson, 457 F.3d 1258(Fed. Cir. (Fed. Cir. 2006) (Where vet files more than 1 claim with the RO at 2006) (Where vet files more than 1 claim with the RO at the same time, and the ROthe same time, and the RO’’s decision acts favorably or s decision acts favorably or unfavorably on one of the claims but fails to specifically unfavorably on one of the claims but fails to specifically address the other claim, the second claim is deemed address the other claim, the second claim is deemed denied, and the appeal period begins to run). denied, and the appeal period begins] 

could mess the whole process up. It this rule is correct, filiing a claim with multiple issues can be detrimental because it seems to say once a decision was made on some of the issues, then the rest are 'deemed denied'. Is that what this decision is saying?

[broncovet]

Yes, but there have been many decision's since the 2006 Deshotel decision which allows "deemed denials".  

More recent decisions show that the decision needs to make it clear to the Vet his claim has been denied.  I do agree that deemed denials are "troubling" and seem to violate 38 CFR 3.103.  

What many Vets do, is to try to reactivate their claim, by reopening or re applying.  Then appeal this effective date and show you applied way earlier.  

If the retro potential is large (and it probably is if your claim is prior to 2006), then you probably should consider an attorney to fight for an earlier effective date.  

Make no mistake:  GS7's and below have no authority to essentially cut a 100,000 dollar check to the Veteran...they simply deny it and it goes to a judge.  This means you may need to share your retro check with an attorney.  However, if/once you have a BVA decision, and you go to the CAVC, the EAJA will usually cover your attorney fees.  

Consider taking your file to a nova attorney, experienced in "effective date" appeals.  Ask him if he sees an earlier date, and how/where.  You dont even have to commit to hiring him at that point.  

[broncovet]

I have been on hadit for 10 plus years, have answered thousands of questions, and I still am represented by an attorney...but I wont have to pay for it because I hired him at the right time:  Right after a BVA decsion.  

[Atlcocky]

Ok Bronco. I understand. I believe that I can write it up in a consise, detail manner that will explain why I believe the date to be incorrectly decided. I will use what you gave me as a road map and then maybe find a nova attorney to look over what I have already completed.

Do we have a good resource on hadit to find attorneys in the Atlanta area? 

[broncovet]

Yes.  The Nova advocate directory is here:

https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

My "opinion":  Dont limit your search for an attorney to Atlanta.  Reason:

The electronic age allows attorney's to be almost anywhere.  Some great reputation attorneys are:

Ken Carpenter has a stellar reputation in wins for Vets, but he is a bit behind when it comes to electronics.  His office did not permit me to send my BVA decision via email, and required that I sent it snail mail.  

CCK Law  (Chisholm) Huge firm.  Good reputation.

Chris Attig.  My attorney.  Attig Steele

Hill and Ponton. 

Dr. Anise Dr. Anise is an attorney and MD.  There are benefits to this.  

I dont know him personally.  

Glover Luck...Dallas Texas.  Won a remand for me, and won benefits after hiring an IMO which I didnt have to pay for until I won.  

     There are other good law firms also.  

I suggest sending board decision to 3 or 4 because you will likely be rejected...some may simply be too busy.  There arent enough attorneys to represent the 25 million or so Vets..not nearly enough.