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NOD, CUE or just refile?

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Jesse Witthoft

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It's a mess and a long story, but I don't know what my best course of action is.

I have a rare genetic condition, Ehlors-Danlose syndrome(EDS). It got discovered a few years after I got out of the military.

I was already service connected for a shoulder issue which actually was a manifestation of my EDS. 

I claimed EDS  the first time in 2013. I framed it that my shoulder condition is actually my EDS. A few years later I got a statement of the case; denied, "the service connected shoulder condition is a separate issue from the EDS"

So, I went and got IME that clearly links my EDS to my time in service. December 2017 I filled a new claim the EDS along with ten other items.

Got the decision back March 2018, denied on all counts except my EDS which did not receive a decision at all; mentioned no where in the decision. Like I never claimed it. Also the new evidence I summited was not mentioned in the list of evidence used to decide my claim.

Then I filled a CUE March of 2018, stating the evidence was not applied to my claim properly and I had a decision missing  for EDS.

Then in February of 2019 I filled a NOD against the same claim. The CUE only listed EDS and I did not want the other 10 items I claimed to not get reviewed.

Now, last month my CUE got closed with no decision being issued.

So, now my EDS is not under review... 

Which leads me to the question... Wait for the NOD decision, or  just refile my EDS in a new claim 

Extra info: I just moved from the CA bay area to Albuquerque NM so now I will have a new regional office and a new set of eyes on my claim.

I feel like this has been a violation of my due process and the neglect to apply the evidence to my claim is criminal.

The combined stressors of my PTSD, chronic pain, moving stress and the VA's royal run around is a little much for me right now. Hadit I have had it.... Please help

 

  

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Did you use a VSO? If so, they might be able to take a look and see what is going on.

Keep in mind the VA will sometimes combine disabilities together or give an analogous rating to make them more in line with what the rating schedule shows. GERD or acid reflux is a good example because they rate it under hiatal hernia. When they do this, they are supposed to come out and tell you.

If you submitted the EDS claim online, there were some issues where some uploaded documentation got deleted. Always best to mail it return receipt so you can have proof of when it was received.

If you filed it in the past, and it was not addressed in the rating decision, that claim can technically still be considered open. This sometimes happens when submitting a "shotgun claim", which is where you file for a lot of things at once.

Have you called the VA 1-800 number and asked about your CUE claim? They should be able to double-check and give you some more information on it's status.

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Oceanbound, I changed my address before the decision was closed.

Vync, I have power of attorney thru Amvets and I plan on going to see my local rep to follow up on this issue.

I also called the 1-800 #, was on the phone for over an hour with them. It took a long time for her to get any info on the CUE. From there end it looks like the CUE was closed with no decision issued and combined with the NOD. But, I asked then if they are combined than why is my EDS no longer listed it the items under review. The VA rep said "well maybe they will give you a decision for it". I told her I claimed EDS in 2017 no decision, filled a CUE in 2018 for EDS no decision. Now it's not listed in my NOD and you think I'm going to get a decision. I sure as hell am not holding my breath.   

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"Closing" a claim absent a decision is a serious problem, permitted by the CAVC even tho its prohibited by 38 CFR 3.103:

Quote
§ 3.103 Procedural due process and other rights.

(a)Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

Thousands of claims have been "closed" without a decision, including one of mine.  Its "one way" for VA to reduce the backlog, just delete the whole claim.  

Have you called Peggy to see if the appeal is active?  Did you send an IRIS email?  Contact the white house?  These are 3 of the remedies you have.  

Unfortunately, VA "closing" the claim without a decision isnt CUE.  Why?  Well because the Veteran has to prove that its "outcome determinative" and there is no good way to show that you would have gotten your benefits if the claim was not closed.  The VA can say, "Oh, its not outcome determinative, because we are denying the claim".  (There is even a name for it, its called a deemed denial.)

     IF neither the claim nor the appeal is active, then file a supplemental claim.  If awarded, you can appeal the effective date if its wrong, alleging you applied mm-dd-yy.  Now you will need documentation you applied on that date.  

    A VSO "may" have VBMS access, and if he does not, get one that does.  VBMS should show the status of the claim.  

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4 hours ago, broncovet said:

    A VSO "may" have VBMS access, and if he does not, get one that does.  VBMS should show the status of the claim.  

Unless you are me.  My claim is marked as sensitive and my VSO does not have access to my VBMS account.  I have filed a congressional and a Whitehouse hotline question three times with no relief.  I have also been to the RO and the Vets.gov helpdesk.  They will keep you in the dark and feed you know what any way they can. 

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The effective date of a claim is the date VA receives that claim, or within one year of military discharge if applicable, whichever is later. The problem with filing a new claim is that you'll lose the earlier effective date for that same disabling medical condition. 

In other words, if you apply for a claim in 2015, it's denied in 2017, and then you decide to reapply for the same medical condition as a new claim in 2019, and assuming it's approved, the earliest effective date you'll get is 2019.  You would lose out on at least 4 years of retroactive payments simply because of giving up on one claim and starting fresh as a new claim. 

 

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