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Pending Claim

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lcpmom

Question

If a claim is categorized as reopened, is VA required to issue a rating decision.

Is their any other types of unofficial VA decisions (non rating decisions) for a reopen claim.

Years ago, my claim was denied and within one year of that denial, it was reopened by VA and continued to be developed.

After 3 years of continued development of the reopened claim, I was provided a statement of non-availability of service treatment records and at the bottom.

a few years after receiving the statement of non-availability of SMRs, I requested a rating of my pending reopened claim and it was treated as a claim to reopen and the date of the denial prior to the reopened date was given as a final denial.

 I have documentation showing REOPENED and communications between me and VA during the development of the reopened claim, again, which was reopened by VA within one year of the denial date.

I welcome your input..

Lois

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Its true, according to 38 CFR 3.103 that you are entitled to a decision.  However, the CAVC has ruled in conflict with that, if you have a decsion on "issue a" and "issue b" is not adjuticated or deferred it becomes "deemed denied".  

The case law on deemed denials is constantly changing.  Currently its rather restrive for VA.  I think the language used is "the Veteran is supposed to know the decision is "deemed denied".  Of course, how would he know that absent a decision on it???

VA loooooovvvvvvessss to keep Veterans "in limbo".  

If you submitted new evidence to reopen, did you mail it certified mail return receipt requested?  Did it show up in ebenefits, as a pending claim?

My advice:

1.  Send an IRIS email (keep a copy on your computer or on paper) as to the "status" of this (reopened claim). Wait a week or 10 days for a response.  If no response, then document that, too. 

2.  Get a copy of your cfile (VBMS "real time" is best) and see if this issue is "being worked" or being forgotten.  

3.  File a Supplemental Claim, noting that you filed it first on (date).  Make sure they dont forget about this one!!!!

4.  If you get a decision on the supplemental claim at the wrong effective date, appeal it alleging you applied much earlier and documented that, above.  

5.  Call the white house hotline, and document that.  

6.  If none of these work, file a writ of mandamus to compel VA into issuing a decision on the undecided issue.   Do this last, after you have the above documented and enclose this documentation.  

     The "pending claim" doctrine is rather complex and lengthy, but basically says your claim remains pending until adjuticated.  VA has no checks to make sure each claim is adjuticated like social security.  

 

 

Edited by broncovet
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BroncoVet,

 

Yes, I have viewed the pending claim in my VBMS disk that was received from VA.

There are several supporting documents of the reopened claim, which VA reopened on month after the initial denial.

After 5 years of development, I received a statement of non-availability of Service medical records and it seems that VA archived my claim shortly after.

As I stated in my original post, a letter was sent to VA by me inquiring about the status of the pending claim, and I was told that my claim folder had been sent to St. Louis. I was informed that after the claim file was received that they would begin to process my claim as a claim for request to reopen.

None of the evidence or correspondence assembled during the 5 years of development of the pending reopen claim was noted in the new decison, which was denied due to no new and material evidence. The last final decision noted was the one that was reopened by VA themselves.

Lois 

 

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Ok, so you have your VBMS file, tho its probably not current.  I have no idea how old this file is, and what has been added or subtracted to your file since then.  

But, lets assume its up to date.  

So you have number 2, which is helpful.  Now you need to do steps 1, 3,5, and 6, above.  Save the writ for the very last.  

Even if you have contacted VA about this issue in the past, I suggest you do so again.  (IRIS).  

Whover told you "your file was sent to St. Louis" either said that some time ago, or, they were lying.  Why?  Well, files are no longer sent to other VARO's.  Now, there is a national Work Que, which is processed by the next available Regional office.  

I thought I had posted something more recent on the NWQ, but I dont see it.  Try this:

This talks about NWQ more recently:

https://www.vfw.org/advocacy/national-legislative-service/congressional-testimony/2018/11/vas-development-and-implementation-of-policy-initiatives

NWQ is a reality.  

Edited by broncovet
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