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Appeal or New Claim? Claim for Right Knee Approved 10% but Left Knee and Lower Back Denied.


lawbro

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Hello All,

My question is regarding my most recent claim.

I put in a claim for both knees and lower back. They gave me 10% for tendinitis in my right knee but declined my left knee and lower back, claiming they were not service connected.

Dr. David Anaise is currently reviewing my files to see if he can secondary connect my left knee and my lower back to my right knee. If he does indeed write me an IMO for this, should I file an appeal of the previous decision or file a new claim for my left knee and lower back?

Thank you for your time and help.

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I would always say appeal as this would save the EEF.  It is not our job to place it where it needs to be, but we can guide the ship per say.  I believe you can file a NOD with the IMO and then let them make it a secondary condition.  

I could be wrong here, I am sure someone else will chime in to give advice here.

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Hi there.  Any time the VA denies a claim, and the Veteran/Claimant disagrees with the decision, the typical response is to file a Notice of Disagreement on the official VA Form 21-0958.  Experienced practitioners will almost always suggest that their clients file an NOD instead of going back to file a brand new claim.  Reason?  To preserve the effective date. 

In VA law, the effective date of a new or reopened claim is the date the claim was received, or the date when its entitlement arose, whichever is LATER.  In other words, if a Desert Storm Veteran files a claim for tinnitus on April 1, 2010 and it is approved in November 2010, the assigned effective date for the tinnitus claim will be April 2010.  If the Veteran's claim had been initially denied in 2010, and he filed a timely NOD, then went through the appeals process to BVA and then CAVC, and was finally approved in 2015, his effective date would still be April 2010.  The Veteran would receive a lump sum retroactive benefit equal to the number of months between April 1, 2010 and 2015.

However, if the initial tinnitus claim filed on April 1 2010 was denied, and instead of appealing, the Veteran decided to gather additional supporting evidence and file a new tinnitus claim on June 1, 2018, the April 2010 effective date would be lost.  In effect, the Veteran would have abandoned the initial claim and is now submitting a new claim, and if approved, its earliest possible effective date will be Jun 1, 2018.  

So, long story short... appeal is almost always the better option.

If you need assistance, please feel free to reach out to me directly: raza@rsmlawfirm.com

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