Do I need to appeal or start a new claim?

[apocalypsesrt]

Short and sweet, I got out of service in 2015 and filed a claim. It was retro to my date of separation. I was rated at 80% and about 13 of the claims my VSO put in were ruled not service connected. I want to re-submit those claims with better documentation and establish the things I have learned at this website but I dont know if I need to do an appeal or start a new claim?

[Vync]

It depends on when you received the decision. The decision letters include documents explaining your right to file an appeal (i.e. file a Notice of Disagreement, or a NOD) and the amount of time to do so (I believe it is still a year). We refer to this time period as the "NOD Clock". If you are still within the NOD clock time period, you can file a NOD, which would preserve your effective date. However, if the NOD clock has expired, you would have to file a new claim which would, in effect, reopen your old claim.

With shotgun claims (claims for a lot of disabilities), the VA may tend to approve some and deny others. It is important to understand how the VA may incorrectly deny some claims which should have been approved.

Service connection (SC) typically requires three things:
1. Event/injury in service
2. Current diagnosis
3. Doc opinion/nexus connecting #1 and #2 (they can't say "possibly" or "probably", not good enough)

There is also a concept called presumptive SC, which tends to be based on being in a certain place at a certain time. A good example is Vietnam veterans getting sick due to agent orange or Gulf War veterans and unexplained illnesses. #3 (above) is handled a bit differently than direct SC.

Additionally, there is secondary SC. Let's hypothetically say you fell off a tank and injured your back and now have severe sciatia in both legs. You file for SC for your back and it gets awarded. The VA is "supposed" to explore any potential secondary disabilities (but this doesn't always happen). It's like the old song, "the hip bone is connected to the thigh bone." The sciatica (nerve problems) may be able to be SC as secondary to your back. For secondary claims, #1 (above) would be replaced with an existing SC disability. You can file an initial claim which includes secondary claims, but to win any of the secondary claims, you would need to also win the initial SC claim.

 

I would recommend you do a couple of things starting with your decision letter.

1. Compare the disabilities they awarded with the rating criteria and your evidence (service treatment records and C&P exam results) to ensure they actually rated them correctly. The VA has had a bad habit of lowballing initial claims. Veterans are just happy they won something that they don't follow through and make sure the VA didn't lowball them. I had a claim where the VARO misread a ROM measurement, but once corrected one of my ratings was increased. Ensuring you were rated correctly could result in increases you your existing ratings. See the link below.

VA Rating Criteria: https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5

2. For any denials, carefully read the explanation they provided. It likely will tie back to missing #1, #2, or #3 (above). Keep in mind that presumptive and secondary SC may apply depending on your situation. If you have #1, #2, and #3, but they missed it, you might be able to get SC. I say "might" because the concept of pyramiding may apply, which means that a condition might overlap with an existing disability.

3. If your SC disabilities qualify for the bilateral factor, ensure they calculated it correctly. This typically applies to paired extremities. Sometimes the VA doesn't correctly factor it in. Lots of info about it here on Hadit.

4. Don't forget SMC-K. In some cases, a SC disability or medication used to treat it can cause problems in the reproductive department. It things no longer work they way they used to, you can file for SMC-K. It's about $100 extra per month, but does not count towards your combined rating.

5. If unable to work due to your SC disabilities, consider exploring Individual Unemployability and/or SSDI. Lots of info about it here on Hadit.

I hope this helps!

[apocalypsesrt]

Thank you Vync!!! It helps a ton. I have to find my letters they sent now.

[Vync]

Glad to help!

If I knew in 1995 what I learned here on Hadit from 2008 forward, I would have had a higher initial rating. Using a VSO can be very helpful if you have no idea how the VA works, but in the end it is ultimately the veteran's responsibility. I think a lot of us ended up with problems like this initially.

[broncovet]

Vync gave you great advice!!

a.  If you are in the one year (from date of decision) appeal period, then by all means file a NOD and begin your appeal.  

b.  If you are PAST the one year appeal period, then you would start a new claim.  

c.  There is no "law" which prevents you from BOTH appealing and filing a new claim.  

d.  If you have "new and material" evidence, then submit it, ASAP.  Reopening, due to new evidence CAN result in an earlier effective date, if benefits are awarded, provided that either:

     1.  The "new evidence" is new SERVICE RECORDS. See 38cfr 3.156 C.  

     2.  If the "new evidence" is not "service records" then you can still get an earlier effective date if you submitted the new evidence on a "pending claim", that is, a claim that is NOT final.   See 38 CFR 3.156 B, "pending claim".