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

[WBrennan]

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 December 11, 2019 by WBrennan
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[broncovet]

I agree with Lotsa Spotz.  As I previously posted, since this is service records, your best avenue isnt CUE anyway, its reopen due to 38 CFR 3.156 C.  

Cue is a last resort, and is based on the records at the time.  

By reopening due to 3.156, you keep  BOD ("benefit of the doubt"), while if you file a CUE, the review standard is "undebatable".  Why make it more difficult for yourself.  Isnt VA benefits challenging enough to win, let alone raising the standard of review to undebatable, even if you could.  

Remember, VA "liberalized" 3.156.  It used to be called new and MATERIAL evidence, that bar has been lowered to new and "relevant" evidence.  

The difference between "relevant" and "material" could be important to you.  "Relevant" could mean it substantiates your claim "along with" other evidence such as newer medical exams.  However, "material" suggests that the new evidence must change the outcome ALONE.  

[WBrennan]

The knee denial is:

The LHI medical opinion found no link between your diagnosed medical condition and military service.  The examiner state that you had no issues related to the claimed right knee prior to military service, current claims file lacks objective evidence for diagnosis or treatment for a right knee condition until post 1997 service, without abnormal gait, trauma or precipitating the right knee condition.  There is no evidence to suggest your right knee condition was incurred in or caused by the left knee during service no during service.

The evidence does not show that your disease developed to a compensable degree with the specified time period after release from service to qualify for the presumption of service connection.

Therefore, service connection for right knee condition is denied since this condition neither occurred in nor was caused by service.

 

So now they will receive the evidence that I was treated in service. Fingers and Toes crossed.

[WBrennan]

My appeal was sent last week.  Will update everyone as I hear back. that should be in about 6 months. lol. :S :)

[WBrennan]

Appeal received at the VA on 11/12/2019 and was told the goal is 125 days. So hopefully by mid-March I will hear something.  VA.gov also says.... We don't know the status of your appeal.  That makes me chuckle....

Edited December 11, 2019 by WBrennan
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[WBrennan]

Appeal Status: We don't know your status.... So I called.... Looks like they are requesting my Medical Records from the Base ER.... Requested it from them on 12/11 with a return date by 1/10.  Going to be interesting as the BA ER medical records dept already told me that they don't have those records.... Lol. Good times.

[broncovet]

Special monthly compensation's "effective date" is the date you first meet the criteria.  Reason: there is no "claim date" with smc, its always inferred and vA is supposed to award it (without) our application when we meet the criteria.  Of course, VA never does everything they are supposed to, so you could have to appeal the effective date, if its wrong.  VA loooooooovvvvvvvvvvvveeeeeeeeesssss to hornswaggle us on the effective dates.  They love that more than anything except denials, delays, and lowballs.