NOD QUESTION

[Galen Rogers 10]

Howdy all,

I submitted a NOD for several reasons on my last claim decision. One of the items was that they did not grant upper Bilateral Radiculopathy connected to my neck injury that they approved. I did not originally request it on my VA claim form but it was listed on my independent DBQ, medical documents provided, and my NEXUS letter. I specifically notified the VA examiner about it also. The VA just sent me a letter stating that I have to submit a new claim for it since I did not originally claim it. The VA should have asked me during the original claim if I wanted to add it from what my VSO rep has stated. If I  submit a new claim it will have an effective date of now instead of 2018. Can anyone provide so insight on this?

[broncovet 4,246]

Well, VA "has not recognized" your informal claim for this benefit, in part, because informal claims dont exist anymore.  

It used to be VA allowed "informal claims" for increase, but that stopped several years ago.  My advice?

Do both.   Appeal the decision, and apply again.  You can appeal the effective date, if necessary, if your application is approved.  You could argue that you had filed an informal claim earlier.  My reasons follow:

1.  Assume you apply now and its approved.  You get now effective date, and can still "prosecute" your claim for an earlier effective date.  

2.  You may also win on appeal, especially if "informal claims" were permitted at that time.  

       So, you have the best of both worlds..this gives you a better chance of getting benefits one way or another.  You apply again, now, because you dont know if you will win your appeal or not.  

While I agree with your VSO somewhat, your claim will be effective the date VA receives your claim.  But, you can dispute the VA on things like Roberson, which says that VA has a duty to maximize benfits.  Im not sure this has been tested in court (The VA getting rid of informal claims), so you may be the first.  

I can tell you this.  I recently won my EED award for TDIU, and it was based on an "informal claim" as I did not fill out a tdiu form until much, much later.  

However, during MY appeal  period in question, "informal claims were allowed" even tho they are not allowed now.  NOW,  You must file on the applicable claim form.  When there is a change in regulations, I think the vA has to give the benefit of the doubt to the Veteran, applying the regulation which is "most advatageous" to the Veteran.   I cant recall where I read that, but I will try to find it if I have time.  

Edited March 15, 2020 by broncovet

[broncovet 4,246]

An alternative is to "hold off" appealing for your 1 year period, but make sure you do appeal within a year if you get approved on your new claim at the wrong effective date.  

In every case, my advice:  Apply now.  Winning benefits now should not "hurt" your potential claim for an earlier effective date later..  

[Galen Rogers 10]

Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 

[broncovet 4,246]

Prior to March, 2015, a Veteran could submit an informal claim.  Now, you have to submit it on the required form.