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How to appeal denial > 1 year? ER visit not in SMR C-File so denied. I just found my ER Visit paperwork


WBrennan

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I filed in May 2018 for both my knees.  In my C-File I had 2 visits for left knee strain so my left knee was service connected. They denied my right knee in 9/2018.  I requested my C-File and the ER visit was not in there.  I requested my Med Recs for the time frame (a 2month period in 1992) and they came back saying nothing found.  Today while going through a box in my garage (11/3/19)  I found the ER coversheet from my visit.  The chief complaint was pain in both knees.  How do I appeal this?  If approved, what do I do to keep the original file date since my appeal deadline was 9/2019?  Thanks in advance!

Edited by WBrennan
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It wont do any good to appeal a decision over 1 year old.  Try some alternatives, instead:

1.  Refile a supplemental claim, with the new evidence.  If awarded, you can then appeal the effective date if its wrong.  The VA posits:  

Why keep it simple?  If you can complicate it and draw it out for years, the Veteran may will give up, or pass away.  

2.  Submit the new evidence via 38 cfr 3.156 b or c to reopen the claim.  

3.  (Similar to number 1) file a new claim, and fight the effective date if its wrong.  

    Cue, tho possible, probably does not apply here.  Cue is based on the evidence AT the time of decision.  The VA has made this clear.  When the VA loses, destroys, overlooks, shreds, or just plain does not read our evidence, the burden of proof is on us.  They get away with everything, we get away with nothing.  

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Correct me if wrong.  No matter what route I take, I will have to appeal the Effective date?  Knowing this going into it helps.

I think I will go through #1 to get everything started. 

Thoughts?

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I would suggest that is correct. You could luck out and they give you the EED, but you have to understand their sop. They deny if possible, they delay as much and often as possible, and thet low ball whenever there is a plausible opportunity. You see, it is possible, but really, don't count on them doing it. Many veterans are afraid to rock the boat and won't challenge it. They are just too happy to finally get a favorable decision. Plan on having to appeal the date and hope to be pleasantly surprised. 

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We dont know if you will have to appeal the effective date.  However, if you go in with that assumption, try to make your appeal bullet proof.  You need to timely appeal, many, many, many Veterans are in this boat for failure to timely appeal.  

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I agree with Broncovet that a CUE is not applicable at this point in your case.  The decision was made on all of the evidence available at the time.

§ 20.1403 - Rule 1403. What constitutes clear and unmistakable error; what does not.

(b) Record to be reviewed - (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

https://www.govregs.com/regulations/expand/title38_chapterI_part20_subpartO_section20.1403#title38_chapterI_part20_subpartO_section20.1403

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