Effective Date After Finding Old Military Records

[Dash 1B]

Hello fellow vets! I was Airborne throughout my time in the Army. I foolishly drove on through the pain and rarely went to sick call so I had very little information in my medical records. I filed for both knees in 2010 and was denied and CLOSED. After the passing of my grandmother, we were going through some boxes and I found some old army papers. In them was my Jump Log with all my military jumps recorded. I actually took that to my doctor and he wrote a nexus letter for me. I filed the claim and this is what the decision letter stated:

Left Knee 40% limitation of extension

                  30% instability

                  20% subluxation

 

Right knee 40% " "

                     30% " "

                      20% " "

 

The effective date was the date I submitted the claim (at the end of 2019).  I put in a Notice Of Disagreement after I found out about CFR 38. 3.156(c) that states if the VA receives military documents that existed and had not been associated with the claim at the time the VA made a decision, then the VA will reconsider that claim. Does anyone have experience with this and can you tell me if I did the right thing? I also want to know how they would compensate for this if I were to win the NOD. I am at 70% now. Thank you!

 

 

 

 

 

 

 

[Berta]

Good for you that you  found those records!!!!!

Did the denial have a NSC rating for what you succeeded in recently, after re opening the claim?

I assume you had a C & P exam for the denied claim...?

If so can you scan and attach the denial here, as to their rationale, and include the Evidence list they used?

Cover C file #, name , prior to scanning it.

It is possible you could file a CUE ( easy to prepare based on what I see here as well as if the ratings for this was 10% or more even though it was Not service connected ( NSC ) after we  see that older decision.It could possibly make things go faster-I assume you are still within the one year appeal period.

Possible CUE - but only based on what I see here---- as a violation of 38 CFR 4.6.

I have an article here under a search as to The Power of 38 CFR 4.6.

It is my favorite regulation and I  have won CUEs with it.Others here ,have as well.

I do feel your 3.156 claim would be great as well.

And it does not hurt to file under any potential theory of entitlement for ANYTHING you can.

I have a pending claim with two theories of entitlement.

 

 

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

 

 

 

[Dash 1B]

I apologize for not being able to upload the information at the moment. My PC is on the fritz at the moment.

 

The strangest thing happened today. I got back my request for earlier effective date today which was denied.

 

In January 2020 I was awarded SC for both knees. The decision letter stated that an earlier effective date was not warranted because the claim was not near contemporaneous.

My doctor wrote a letter refuting this VA finding along with stating that he used my Military Jump Log to aid in his finding that my knee situations are due to my military service which included my parachute jumps. I took this information along with buddy statements and resubmitted for an earlier effective date. Today I received the decision letter which all of my knee conditions were denied citing that the appeal period had expired when the VA received my claim.

In essence, the VA used two different reasons on two different letters why I am not entitled to an earlier effective date but not once did the acknowledge CFR 38 3.156(c) along with my DA 1307 Jump Log which was the reason I am filing for an earlier effective date. I did not have my jump log (military service record) at the time I filed in 2010 and that is what CFR 38 3.156(c) states

Do you all think I should get an attorney or something? Thanks

[Dash 1B]

 

 

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Posted 11 hours ago

I apologize for not being able to upload the information at the moment. My PC is on the fritz at the moment.

 

The strangest thing happened today. I got back my request for earlier effective date today which was denied.

 

In January 2020 I was awarded SC for both knees. The decision letter stated that an earlier effective date was not warranted because the claim was not near contemporaneous.

My doctor wrote a letter refuting this VA finding along with stating that he used my Military Jump Log to aid in his finding that my knee situations are due to my military service which included my parachute jumps. I took this information along with buddy statements and resubmitted for an earlier effective date. Today I received the decision letter which all of my knee conditions were denied citing that the appeal period had expired when the VA received my claim.

In essence, the VA used two different reasons on two different letters why I am not entitled to an earlier effective date but not once did the acknowledge CFR 38 3.156(c) along with my DA 1307 Jump Log which was the reason I am filing for an earlier effective date. I did not have my jump log (military service record) at the time I filed in 2010 and that is what CFR 38 3.156(c) states

Do you all think I should get an attorney or something? Thanks

 

[Berta]

When your PC is fixed, we can help more when we see the actual decision.

This is very concerning:

"Today I received the decision letter which all of my knee conditions were denied citing that the appeal period had expired when the VA received my claim." ?????

That does not make sense.

 

[broncovet]

It sounds like , VA "reframed" the request to reopen under 38 CFR 3.156C as a NOD.  You need to appeal the denial, citing their failure to apply 3.156 c.  

Edited March 17, 2020 by broncovet

[Dash 1B]

Got it working! 

Decision marked "1" is the first decision that granted SC but no earlier effective date because of not near contemporaneous. It also lists military service records (jump log) in the evidence

 

Decision marked "2" is the second decision that denied an earlier effective date because the appeal window was missed. It also does NOT include military service records submitted Dec 2019 and also does not mention CFR 3.156(c)

Thank you all for your help! Really wish we could all sit down and have a beer!

img-200317222253.pdf img-200317222620.pdf