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medengines

missed 1 year timeline appeal

Question

Submitted multiple claims in 96' 

I was told nothing in from VA office multiple times.

Fast forward to May 2017, I visited VA again. They scheduled physical exam and was given a 10% disability. Based on my prior claim for only 1 of my issues. 

I was back paid from 96' but all other claims were denied. I went back to appeal and was told that there wasn't a "time limit" even knowing my papers said i had 1 year to appeal. 

I came into active duty with a prior jaw injury, while in service I had a complete reconstruction of upper jaw with bone grafts from hip and 4 implants to upper maxilla which took over 2 years to complete. 

This is now causing me pain and smelly discharge from my implants, What can i do since i missed my 1 year window of appeal?

I also want to appeal the 10% rating...What would you guys recommend?

 

 

 

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"I was back paid from 96' but all other claims were denied. "

You might have filed this awarded claim within one year of your discharge????

Or those claims were still an "open issue"?????  

"I went back to appeal and was told that there wasn't a "time limit" even knowing my papers said i had 1 year to appeal". 

Did you appeal any of the denied conditions? You mention the C & P as being done in 2017?

When did you actually get the award for one and the denials for the other claims?

Can you scan and attach here their decision, awarding the SC , as to the evidence list and their rationale?

"This is now causing me pain and smelly discharge from my implants, What can i do since i missed my 1 year window of appeal?"

You would have to provide the VA with New and Material evidence, meaning medical records that the implants are causing you problems. Has the implant become infected?

I dont know how they would rate that but I wonder if the 10% was too low, when they awarded that.

 

 

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Cover your C file, name, address prior to scanning their decision.

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Hey,

There is a 1 year in which you have to file, but you can always reopen your disability for review.  The one thing I have learned is to have all of your evidence (Medical-appointments-lay statements-Buddy statements-spouse statements) anything that has to do with your injuries.  Do not leave it for the VA to find.  They never will, so the work on your end is to get this information and then get with your VSO and reopen/appeal what is service connected or you can prove is service connected.  Make sure during the intake process you are showing a timeline to give a full picture of issues and how they have gotten worse.  I would also suggest looking at how the VA rates any disability you have and see what criteria you meet for each, as they are looking for specific things to rate each one.  

Your VSO will ask you why you did not file within a year, and they need a reason so they can reopen.  

You can also go the way of a veterans attorney, they do charge for their services after the case is won, but they do have a good record with navigating the VA.

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38 CFR 3.156 has "2" ways to reopen and get an earlier effective date.  

1.  3.156 C   If the "new evidence" was new "Service records" which establish your disorder was caused in service, then you can argue for an eed.

2.  3.156 B This allows you to reopen a "pending claim", that is, one that is still in some stage of the appeal process.  

    Otherwise, if you try to reopen due to new evidence, the earliest effective date you will get is the date you sent the new evidence.  

Exceptions, as Berta pointed out is if you applied within a year of service.  

Berta can help you with CUE, BUT..there are lots of pitfalls with cue.  It has to be undebatable, based on the laws at the time, and the error has to be "outcome determinative."  The VARO failure in its duty to assist isnt cue.  

If you reapply, get awarded and you get a bad effective date, you can appeal the effective date and make a case for a 96 effective date as that is when you first applied.  However, the effective date is the later of the "facts found" or the date you applied, so you would need to show you met the criteria all the way back to 1996.  It isnt enough to just apply, you have to meet the criteria.  

Edited by broncovet

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12 hours ago, broncovet said:

38 CFR 3.156 has "2" ways to reopen and get an earlier effective date.  

1.  3.156 C   If the "new evidence" was new "Service records" which establish your disorder was caused in service, then you can argue for an eed.

2.  3.156 B This allows you to reopen a "pending claim", that is, one that is still in some stage of the appeal process.  

    Otherwise, if you try to reopen due to new evidence, the earliest effective date you will get is the date you sent the new evidence.  

Exceptions, as Berta pointed out is if you applied within a year of service.  

Berta can help you with CUE, BUT..there are lots of pitfalls with cue.  It has to be undebatable, based on the laws at the time, and the error has to be "outcome determinative."  The VARO failure in its duty to assist isnt cue.  

If you reapply, get awarded and you get a bad effective date, you can appeal the effective date and make a case for a 96 effective date as that is when you first applied.  However, the effective date is the later of the "facts found" or the date you applied, so you would need to show you met the criteria all the way back to 1996.  It isnt enough to just apply, you have to meet the criteria.  

OMG do i have some learning to do! 

I've got to admit i am lost as to all the EED, CUE, VARO and all of it..wow

I need to get all this down..I really really appreciate this help and advise here. Thanks everyone

I'll try to post my papers here shortly, hope i can get that done!

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