Is claim still open?

[bigoc]

I requested connection for psoriatic arthritis of the right hand, left wrist, and both feet.  In addition to these joints the RO requested a C&P exam of shoulder, hip, elbow, wrist, knee, and ankle.  I have no idea why they did this but it is possibly beneficial to me.  I'll attach this part from my c-file at the bottom on this post.  The VA only decided on the four claimed joints.  The other joints that the VA put in the C&P request were never evaluated or referenced in anyway.  This includes no mention in rating decision letter or during the C&P.  

Fast forward to 2015 I report for a VA requested future exam for the four SC joints.  I made the complaint of joint pain in 11 joints to include the joints stated above from the 2009 C&P.  These were recorded in the results as pain.  In addition to the documentation in the 2015 exam, they VA acknowledged the additional joint pain and suggested I contact them if I wished to claim these.  I stupidly did not see this until recently. 

Would I be able to get these joints connected and EED back dated to 2009 or 2015 based on an inferred issue and that no decision was made on the other joints?

Again the VA is the one that requested the additional joints to be evaluated in 2009 and not me.  Then they were never addressed.  I am interested in this because I have been finding information on claims being considered open if the VA never renders a decision.  While they rarely miss a veteran claim they often miss inferred issues.  This seems like a pretty obvious inferred miss to me.  The VA specifically requested the additional joints. Might be a stretch but this would be significant retro.

 

[broncovet]

Effective dates are one of the most complex areas of Veterans law.  In general, your effective date is the later of the "facts found" or date of application.  There are many exceptions, and I will provide a link to them.  

Many/most Vets who actually win a significant retro eed claim do so after they hire an attorney.  

Alex won a 1994 claim, but even he hired an attorney.  

I have won EEd claims, each time with an attorney.  (Yes, effective dates for different issues).  This is my opinion "why" effective date claims are usually won at the BVA level or above, and with an attorney:

1.  Its my opinion GS7 rating specialists do not have the authority to sign a document which results in a six figure retro check for you.  

2.  Instead, it usually takes a judge who has that authority.  

3.  Judges nearly always started out as attorneys and frown on you not having one.  

4.  Attorneys have access usually to Lexis Nexis, or other similar law services which enables them to search all relevant law in a short period of time, including BVA, CAVC, Federal Circuit, VA fast letters, and OGC Opinions, any one of which can have an effect on the outcome of your appeal.  

5.  Your attorney, if he accepts your case, is betting money he will win.  Why?  Well, it will cost him money to lose..he will lose his own time, the labor of his assistants which he has to pay, and any expenses he incurs.  If he "bets" on you, he is fairly sure he has about a 90 percent chance of winning at least a remand.  (Only about 10 percent of attorney represented claimants are denied at the BVA level).

      Now, you choose..its your money.  Remember, tho, if you hire an attorney at a BVA denial (appeal to the CAVC), you wont have to pay attorney fees in most cases, because they are paid by EAJA.  

Now for the effective date regs link.  If you cant understand these, then you are unlikely going to represent yourself well:

https://www.law.cornell.edu/uscode/text/38/5110

 

Edited October 23, 2019 by broncovet