Filing a NOD to correct an effective date

[VanillaXtract]

I have received a rating decision that granted me disability for my back and neck. I made the claim 08/10/2021. Back in 2008, I filed the same claim but as I was fresh out of the Navy I was not able to take off work to attend the appointment, so my claim was denied. Fair enough, I get that. However, in 2017 I put in a supplemental claim as my issues were getting worse. The claim was denied because:

"The claim for service connection for back pain is considered reopened. However, the evidence

continues to show this condition was not incurred in or aggravated by military service.

A review of the evidence shows you were previously denied for back pain by Rating Decision

dated May 29, 2008. You were previously denied because we were notified that you failed to

report for an examination scheduled in support of your claim. The evidence did not show a

current diagnosed disability. You were notified of this decision on May 30, 2008.

We have been informed that you have missed the VA examination scheduled in support of your

claim. There is no information presently indicating good cause for absence on the scheduled

appointment date. As a result, medical evidence that could have been used to support your claim

was not available to us. Please notify us when you are ready to report for an examination."

 

At the time, there did not seem to be a way to notify them other than filing claims that I was ready for an exam. So I made the 2017 supplemental claim and subsequently received a denial letter with no recourse. Does this seem valid for a NOD on my effective date back to 2017? If so, do I write a supporting statement and are there certain things I need to be sure to include?

redact 2017.pdf redact 2022.pdf

Edited September 20, 2022 by VanillaXtract
fix formatting

[pacmanx1]

I guess I am not understanding your question and I am not trying to be negative but a lot of veterans file claims and fail to go to the C & P exam or do not have medical evidence of a current disability and this causes problems when the VA tries to process their claims. So, I am a little confused, did you miss a 2017 C & P exam or just the 2008?

Keep in mind that you must have 1. An in-service event, accident or incident. 2. A current diagnosis. and 3. A nexus connecting 1. and 2. to be awarded/granted a service-connected disability rating and part of that is to have a medical examination.

[VanillaXtract]

I missed the one in 2008. In 2017 I filed and only got denied. I never had an opportunity to get another exam. 

[pacmanx1]

The problem here is that each time the VARO (Regional Office) makes a rating decision, the veteran only has 1-year (365) Days to file an NOD, when was your claim decided and rated? You post you made a claim around 8/10/21 but when was it rated or is this the rating date?

Since you are looking to try to get an earlier 2017 effective date, what happened to the notification letter that the VARO sent you? I would say we need a little more information to try to help you.

[Whodat]

I think that I am kinda understanding on what's going on. 2008 exam denied due to  c&p no show. 

Filed again in 2017. Denied again in 2017. That was the time of the AMA experiment. The Vet filed a supplemental claim instead of a NOD is what I am thinking. 

Now the way that the decision letter states could be a little confusing. Please notify us when you are ready for an exam. I have never know for VA to give second chance on exams unless a valid reason was given for missing the exam. 

So that claim was closed. 

[broncovet]

Unfortunately, "the burden of proof" is on the Veteran, that he/she is service connected, that is, has the Caluza elements described by Pacman, above.  

I really understand your problem, and it is VA-wide?  I think the VA must be "Ghost Busters", because "Who Ya Gonna CAll" to cancel and reschedule an appointment?  

However, the VA does not care..its our problem.  "If" you went to your VA medical center, and talked to enough people, you may have found "someone" who would give you a number of who to call.  A lot of winning benefits is about persistence, we have to keep going until we find out who to call.  

The phone numbers for VA seem to be a carefully guarded secret.  They dont want us to call them.  They argue if they spend all there time talking to Veterans, they would never get anything done.  

This attitude conflicts with research showing that, "2 way communication", while it does take longer than "1 way" communciation, is far more effective and efficient.  

Hitler had "one way" communication.  He told his officers what to do, they either did it or were exterminated like the Jewish people.  Hitler's officers were not  allowed to communicate their wishes or feelings, and did not even think about challenging Hitlers orders or ideas.  They should have done so, and some are being tried for blindly following Hitlers orders.  

VA has adopted the Hitler method.  Most of the time, we can not call a rating specialist, BVA judge, or anyone else who has any authority to do anything.  Instead, we can "call Peggy" who looks up stuff and maybe will inform us, of course, we have no idea how reliable their information is.   Pretty much, "Peggy" tells us nothing with few exceptions.  

Its a big part of "what's wrong with VA": Poor Communication (more often no communication at all).  

Many of us went to college where we probably took several years  communication classes, such as English, Speech, Creative writing, or even Communications 101.  With my bachelor's degree, I estimate that probably 50 percent of the classes I took, or more, was related at least some way to communication.  For example, "math" is one way of communicating quantities.  A carpenter needs to know how long and wide to build a house, and he communicates by reading the blue prints and understanding, also, how to read a tape measure.  A carpenter that can not read a tape measure, is useless, and unemployable.   None of that matters to VA.  

Rating decisions have to be appealed in one year, with no exceptions.  

My advice is to file again.  (probably a supplemental claim).  But, dont skip reading your files to see if you have documented:

1.  An in service event. 

2. A current diagnosis

3. Nexus, or doctors opinion 1 and 2 are related.  

    Most claims are denied because there is no, or an inadequate nexus.  You should find out if you have one, if you dont, then you need to get one.  C and P examiners "rarely" if ever render an adequate nexus opinion, and it often takes an IMO/IME to document a nexus.  

    Keep trying, file again, then appeal if necessary.  You can also appeal the effective date, but always appeal a VARO decision in under 365 days.  

[Vync]

@broncovetmakes a great point about two-way communication. When the LHI NP opined a denial on an unclaimed condition (yes, that happens), I checked with the VA and learned the decision was not yet final. I put in a request via Peggy and also submitted an IRIS request. All they had to do was spend 60 seconds on the phone with me and then remand the C&P exam back out for correction. Instead, I never heard from anyone aside from the faulty denial letter. Prior to the AMA and the VA's decision to eliminate the 48 hour window for VSO review of claims, the VA had a moderately decent quality control system setup at my VARO. They would call me and go over the findings to make sure they got everything right. They genuinely did not want to miss anything. Of course, they could not discuss retro amounts because those were pending approval. After the AMA went into effect in early 2019, they threw those common sense solutions out the window. And with the AMA process, you have to start over and go to the back of the 125+ line and simply hope they get it right this time.

Under the prior system, you could keep a claim alive via NOD's, DRO reviews, etc... and still maintain the earliest date from when the claim was submitted. Remember that the AMA was designed to allow the VA to -close- claims as quickly as possible. They could take those performance metrics/statistics back to the lawmakers and paint a picture that things are looking better. In reality, all that happened was they are told to get out of one line and opt to get into another line.

I have only ever missed one exam, but the only reason I missed it was because I simply did not know about it. I was at the VAMC checking out of a clinic when the clerk said I had a C&P exam on the schedule which I was about to miss. I walked over to the C&P clinic and they said they mailed the appointment letter. I let them know I never got it, but they were nice enough to reschedule me to the following week. When I got home that afternoon, the C&P appointment letter was waiting in my mailbox, postmarked the day prior...

Missing a C&P exam will definitely result in being denied on a new claim. However, if 10+ years later, the vet files again, I would have hoped the VA would have evaluated all evidence of record to determine if a new C&P exam was warranted instead of simply denying again because the vet missed the initial exam.