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Kenneth Livingston

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Kenneth Livingston

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I am preparing to deliver a fully developed claim having submitted an intent to file declaration about 9 months ago.  One element of this application was a request to 

reopen a case which had been denied about 30 years ago.  Intended to submit new material and relevant evidence and request an effective date to the original claim.  My understanding 

is that with the new changes in the system FEB 19, 2019, I would be required to file a "supplemental claim" and forego the original application date 30 years prior.  (https://bit.ly/2KkGgXu)

I have no record of the denial.  The VA Regional center had no record of the denial or even the application.  DAV had no record.  VA hospital locally had no record with my initial records request 2018.

But a few months back I pressed the VA records folks a bit and they did some digging and found the record for that initial comp & pen exam...still awaiting delivery of that. 

QUESTION:  file the  "supplemental claim"  due to the new regulations and forego the earlier effective date 30 years and request it to be the date of my "intent to file"?

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If you file the supplemental claim, and are awarded benefits, you can appeal the effective date.  

It "would" appear your c and p exam 30 years ago would substantiate your position you applied back then, but I cant say for sure if that would be probative or not.  You would think so, after all, the VA doesnt do a c and p exam if you have not applied.  

Your effective date is the later of the "facts found" (which normally means the date the doc said you were disabled) or the date you applied.  

I will take a WAG that your c and p exam could be proof you applied 30 years ago.   The denial may or may not be relevant.  Again, see the effective date rules:

The later of the facts found or date you first applied.  So, the C and P exam could establish a claim date, or nearly so, and the doctor will have to provide a date HE thinks you were disabled.  

I say go for it.  You will probably need an attorney to win the 30 year effective date.  It would appear the "supplemental claim" would not hurt you.  Is there "new evidence" you can submit?  

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Thank you very much for your reply.  New evidence which is material and relevant in my opinion.  1)  sworn dec from squad leader of the incident and injury during active duty service 2) two page document generated from the local VA seeking medical records for this evaluation 30 years ago 3)  A signed document from a USAF recruiter three years later mentioned that he had made contact with a college ROTC program which had discharged me from its Army ROTC program based on an abbreviated MEPS eval for the condition in question which deemed me as disqualified.    There is no record of this MEPS evaluation.  At the college in question I was diagnosed and treated with an injection but no medical record recovered.  Quote from that document:  "...since he was physicalled and found to be ineligible, the Army ROTC Unit completely voided him from their program."

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12-16-2019 follow up.  I was granted 10 + 10% in the reopening of the case with an effective date 2019 when the application was made.  The request of ED 30 yrs prior... back to the date of original application was denied.  Any other guidance at this point moving forward to appeal that?  Attorney, NOD, perhaps CUE claim if applicable?

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Now is the best time to file an appeal to your effective date.  When you "reopen" due to N and M evidence, there are 2 distinct possibilities:  

1.  New "evidence".  38 cfr 3.156 b.   If it was new evidence but not new "service records" then your effective date is the date you submitted new evidence.  

2.  New Service records.   38 cfr 3.156 c.   If you proivided "Service records" then your date should go back to your original application.  

This is a jugement call, but it seems like at least "some" of your evidence was from your years "in service".  

    To get an effective date back 30 years ago, you are going to need to demonstrate also that your symptoms met the critiria back then, and I dont know that, either.  

     I do agree there is a possibility of CUE, but having not read your file, I dont know.  Its a serious problem to argue "cue" on a decision that neither you nor the VA aparently has.    However, since VA agrees you meet the critieria today, this suggests you also met the criteria back then, "provided that" you had the same symptoms today as you did 30 years ago.  

     Your idea of an attorney is a good one.  You can take your file to a attorney and let him review to see if he thinks you can obtain an EED.  No cost to you.  Then, if the attorney says, "Yep, I think I can win you an EED", THEN you can decide whether to hire him, to represent yourself, or to be represented by an alternative such as a VSO or someone like Alex Graham.    Simply ask the attorney, if/when he offers representation, how he intends to get you an EED.  Then decide, after you have all the information, how much the attorney will charge (probably 20 percent of the retro), and even whether or not he thinks you could get higher than your existing rating (that is, if he thinks you were lowballed).  

Its possible you could get both:  A higher rating and an earlier effective date.  

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Make sure you get an attorney that is approved by NOVA (national organization of veterans advocates).  This helps prevent you from getting an attorney that is not familiar with VA claims.  They are not like other compensation claims.

https://www.vetadvocates.org/cpages/home

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