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E.E.D/ Best course of action


Jimmer

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Hi Everyone, I first want to thank everyone for the fantastic job, that you are doing.  I know I would be "completely lost" without your knowledge, wisdom and input.  I all of you a great deal of  thanks for all the help you are providing.  I have a question.  I had a DRO hearing, and satisfied with the percentages, but one item, I feel they made an error in the effective date.  They gave me a April 2014 date, and I feel it should be July or September 2009.   I had a Spirometry test (lungs) and a letter from a Specialist  supporting the injury that cause my problem occurred in the military.  While he did use the words "more likely  then not", he did state that he felt my injury was the result of the accident.  I failed to include the letter to the DRO, simply because I have verification the V.A. had received it.  In September I had him write another letter which did state the worlds "more likely then not",  and went into greater detail.  I have no record that the V.A. received it.  What would be the best course of action?     It is within my one year period.  To I introduce the second letter and New evidence?  Use bothe letter, they are both from the same doctor.  Any help would be greatly appreciated.  Thanks,  Jimmer

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You forgot to answer one question:

When did you apply?  

The nexus statement is important, but your effective date is the later of the facts found or the date you applied.    There are exceptions to this general rule, especially if you applied within one year of exit from service.  

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If you did apply much earlier than the effective date (say 2009), then yes, you need to dispute the DRO decision by filing a NOD.  I suggest you "go straight to the BVA", instead of going through still another VARO HLR or SCL lane.  An exception may be if your new evidence was probative, that is if the doc said you were disabled in 2009, and, you applied in 2009

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Broncovet,  thanks for the information.  I originally applied in 2009, and had the letter submitted at that time.      

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Dispute the decision by filing a nod, and, I suggest going directly to the BVA.  Decide whether you want a hearing or not, and it sounds like you have new evidence.  

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Did the VA acknowledge his past letter? It would be listed in the evidence list if they did, but they also had to mention it in the decision and why they rejected it?

Yes the VA needs to have a copy of his addendum clarified his wording.

Can you scan and attach the decision and evidence list here?

Cover you C file # , name, prior to scanning it. 

If I cant back here after it is posted, others here will review it for a possible CUE.

 " I failed to include the letter to the DRO, simply because I have verification the V.A. had received it.  In September I had him write another letter which did state the worlds "more likely then not",  and went into greater detail.  I have no record that the V.A. received it."

Do you have any proof of mailing it or faxing it to the Evidence Intake Center?

 " It is within my one year period."

Good!!!!! You have a chance to get this resolved prior to any BVA transfer- within the appeal period-otherwise if the BVA does not have this info, they might possible deny or remand the claim.....

 

 

Edited by Berta (see edit history)
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Broncovet/Ms. Berta  thanks for your input.  In my Rating Decision Letter that I received (BBE) under the section "Evidence" they indicate the letter from the Pulmonologist of July 29, 2009.  They make no reference of the latter letter dated September 15, 2009.  They make reference to the doctor, along with two other pulmonologists I had,  (the one that wrote the letter in 2009, retired in 2013), and state the following "You have provided medical records and correspondence from several pulmonologists, including  (the three doctors) whom have all opined your diaphragmatic paralysis is a least like related to the fall during service".  So one of the three doctors was the one that wrote the letter in 2009.  "The effective date of service-connection is April 14, 2014 the day we received your claim."   I totally disagree with that statement!

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You stated:

 " I originally applied in 2009, and had the letter submitted at that time.  "

Can you scan and attach that decision,regarding the original claim? With the Evidence list and also can you scan and attach the recent decision you received and that evidence list?

Cover your C file # and name prior to scanning it.

 "The effective date of service-connection is April 14, 2014 the day we received your claim."  

"I totally disagree with that statement!"

I do too , based on what you told us, but the only way to recover a better EED is with a CUE claim. That is why we need to see both of  those decisions.

If I am not here to view them ( have a busy week) others should be able to determine if a CUE exists in the older 2009 claims decision, if it involves the same disability.

 

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Ms. Berta, The V.A. claims that they received my claim in April 2014, when I used a VSO that sent in claims for other things and sent information pertaining to my lungs.  I  was doing it by myself in 2009, and I sent in the claim for the lungs, along with the specialist's letter.  I did send it regular mail, I didn't know to send it for a signature.  They have the copy of the letter, but say they never received  the claim that I filed.  

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This is the same 3 card monte that VA pulled with me.  I even filed a complaint with VAOIG alleging they destroyed my evidence to include a claim application.  

If you dont have your cfile, get it.  READ IT carefully.  There "just might" be some reference to your earlier application.  

You will need documentation.  Cushman had such documentation:

https://caselaw.findlaw.com/us-federal-circuit/1346393.html

In Cushman the VA fraudently altered the Veterans records in order to give him a lower rating.  Of course, this took a thorough review of the file, and comparing the cfile to the actual medical records.  

 

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