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
Typo

[WBrennan]

I spoke to the VA on Friday and the Martin Army Community Hospital did not send them any medical records.  I reached out to my state representative. They said they can assist in trying to get the medical records. I filled out their form for privacy release. I also sent them a synopsis of who have contacted regarding the visit. Also set up a copy of my patients copy of the visit. Now I'm in the waiting game for this. The claim is still in the supplemental a claim right now.  I will update everybody after I hear back from either the VA or my State Representative.

[Dustoff1970]

This is another long shot if all else fails but if the VA had constructive receipt of military and or VA medical records that was in their system and should have been but was not before the adjudicator at time of his/her decision then this is considered a hard to prove CUE error and the effective date will be date of initial claim.  However, how does one prove that these records were in their possession and not considered by the VA rater is a real challenge to my way thinking.  Good luck. 

My info is not legal advice as I am not an attorney, paralegal or VSO.

[pwrslm]

Records from a hospital and xrays are not stored in the same location that your service treatment records are.

You must specify that you want the records from the hospital or clinic and give them the name of the hosp/clinic and dates (from / to) of treatment in order to get them to look for it. 

 

Edited January 14, 2020 by pwrslm

[WBrennan]

My state Representative was only able to get my STR that I already had.  The good news is these are a better quality than the ones the VA sent me.  I will be sending a FOIA request to the facility, even though they told me that they don't have those records.   I am going to hit everyone with the FOIA.  I have proof I was at the base ER (Patient's Copy) but I don't have the medical and treatment records.  So now I will send out a bunch of FOIA requests.

[WBrennan]

Day 126; update. Medical Records have not been sent from MACH ER.  My claim had a suspense date of 3/11/2020.  I was told this is when it would go back to the rater to continue with their work.  I will check back in 30 days and see where it is ...

[WBrennan]

I received the BBE today.  They denied my right need ACL repair and osteoarthritis.  I was appealling only the osteoarthritis.  What is interesting is under the: Favorable Findings in this decision they seem to hint at claiming the osteoarthritis... I called the VA and the rep was hinting at appealing for only osteoarthritis or file new claim.  See attached image of denial and favorable Findings.  Thoughts?