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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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acesup

It's Official! Awesome BVA Decision Received. Appeal for EED?

Question

I received my BVA Decision Letter this afternoon.  I feel totally vindicated in that the judge repeatedly pointed out that my STRs and medical records plus nexus letters and IMOs provided the basis for granting Service Connection, while the C&P medical examiners and the VARO failed to thoroughly address several issues of secondary SC, thereby denying my claims based on "inadequate" negative opinions to which he assigned "no probative value".

Wow.  Just wow.  I had some incredibly good nexus letters/opinions from several doctors, some specialists, but they were ignored in the 2011 denials and subsequent DRO Review.

The effective date for TDIU and SMC (s) was set back to 2009.  

However, I applied for two of the granted issues (OSA and sciatica) plus TDIU in 2007, in a claim that was apparently sent to sleep with the fishes back during the "Shreddergate" scandal in 2007.  I asserted that fact in 2009, and received a VA Fast Letter stating that the 2007 filing would be recognized.

I'm not 100% certain whether I should pursue this, but I will definitely be looking at it.  If I do want to file NOD for the date, will it be to BVA or VARO?  And, what is the deadline?

Edited by acesup

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26 minutes ago, acesup said:

I asserted that fact in 2009, and received a VA Fast Letter stating that the 2007 filing would be recognized.

Do you mean a VARO letter or a Fast letter issued by VA Central?

Do you have a copy of your C file?

Did the BVA mention the 2007 TDIU claim at all?

What is the last you heard from your VARO on the TDIU filed in 2007 ?

If I were you I would order a Copy of the C file from your VARO, and also go to www.va.gov and click on Contact Us amd then click on Ask a Question, and you will be directed to IRIS_ follow their instructions and ask them for the status on that older TDIU claim . Ask for an email reply.

Can you scan and attach here the letter as to the 2007 filing?

Cover C file # and name prior to scanning it.

Edited by Berta
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Hi Berta, thanks for coming in on this issue!

My memory isn't as great as I sometimes believe it to be. I still think I did get a written acknowledgement of the Fast Letter deal, but can't find anything like that so far.  I didn't actually get a "Fast Letter" from the VA, but back at the time, a Peggy Rep gave me a Fast Letter 08-41 to cite when making the claim. 

B.V.A. did not mention the 2007 date anywhere, neither do the denials I got in 2011 and 2014.  BVA is granting everything back to Oct. 2009, the date of the rest of my claimed conditions.

What I do have:

My October, 2009 letter to VARO-Little Rock asserting that in May 2007, I submitted a written claim to VARO-Houston (I lived in that area during that period).  I also included a copy of the original 2007 typed claim.  (It was not required to be on any official form back then, so typed and signed was okay.)  I sent it Certified Mail, so have the return receipt from the RO.

On Dec. 3, 2009, after learning that VARO-Waco was going to be handling my claim, I then sent Waco a letter and documents in support of the 2007 claim.  Once again, I sent it Certified Mail, and have a return receipt.

Having not heard a specific response, on Dec. 22, 2009 I went online to VONAPP and submitted a Form 21-4138 restating my situation, and again citing the VA Fast Letter 08-41 that would cover it.

A response from IRIS showing an inquiry about the 2007 claim, but doesn't actually answer it.

A VCAA letter for my claim with "What Have We Received?" showing "Letter from you with copy of your claim dated May 3, 2007"

I'll attach files.  

 

VAEvidence2007EED.pdf

Edited by acesup
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Here's the applicable info from VA Fast Letter 08-41.  My claim was within the covered dates, and my claim was re-asserted before the Fast Letter expiration.

Fast Letter 08-41 states in part:
"The Secretary has determined that temporary special claims handling procedures are appropriate to relax certain administrative claim submission requirements for claimants who assert they submitted a claim or evidence within the 18 months preceding the date all document shredding activities ceased in VA regional offices; that is, claims or evidence submitted between April 14, 2007, and October 14, 2008. These temporary procedures are established to ameliorate any loss of claims, information, or evidence that may have occurred as a result of inappropriate document disposal in VA regional offices during this period. 
RO personnel will use the temporary special claims handling procedures set out in the attached enclosures to assist claimants and representatives in establishing whether or not a claim was previously submitted to VA but was not retained and acted upon. 

Claimants must assert their request for consideration under the temporary special claims handling procedures in response to the 2008 records incident within one year from November 14, 2008. RO personnel will exercise the Secretary’s authority to recognize a claimant’s or representative’s assertion that a claim and/or supporting evidence had been previously submitted to VA during the 18-month window from April 14, 2007 to October 14, 2008. The effective date will be established as though the claim was received on the date asserted by the claimant. Effective dates earlier than April 14, 2007, may be established based upon receipt of credible evidence supporting the earlier date of document submission.



This letter self-rescinds on November 30, 2009. 
"

Edited by acesup

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Submit it all and ask for a reconsideration from the BVA. If your documents were in your CFile, they should approve it right off. If not, you can withdraw the reconsideration so you can appeal the BVA decision for an EED. Just watch the clock so you dont go past the deadline for the appeal.

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This is a perfect time for you to get an attorney, by appealing to the cavc (the effective date).  

An attorney will  review your board decision, along with your file and entitlement theories, and decide if he or she will represent you at the CAVC.   

Before you start worrying about attorney fees, these are often paid by eaja when appealing to the CAVC.  So you get an attorney at no cost  to you.  Hire one experienced at the CAVC.  

https://www.vetadvocates.org/cpages/sustaining-members-directory

I recommend Chris Attig, Ken Carpenter (Topeka Kansas), CCK, Hill and Pontoon, as they are experienced pros.  Im currently represented at the CAVC with Chris Attig, in an effective date issue, so I have taken my own advice.  

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