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VA closed claim but there was no mention of one of the items initially claimed?

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redcurry90

Question

Any help appreciated. 

 

I filed a claim on 6 MAR 2023 for: 

 

Bipolar II Increase

Migraines w/ variants increase 

neck pain (secondary to back already established) 

 

I was given an answer on the bipolar claim a few weeks ago (increased). After that, it was basically crickets. Last night I log into the app and it says my claim has been finished & closed as of 2 JUN 2023. I opened the website to take a look at the decision letter and my request for migraines increase is nowhere to be found. I read it multiple times and my partner did as well (he has been through the claims process a few times). No mention of migraines whatsoever. I look under my individual ratings and nothing there either, just what has been there since I medically retired in May of 2020. The decision letter only mentions the neck pain, nothing on the migraines. Of course, it wasn't uploaded until about 20 minutes before they closed for the weekend. Other info: I had a C&P exam for both my neck and migraines done by the same examiner on the same day, and nothing was requested of me outside of that. Did the VA just drop the ball? Has anybody ever had this happen? I have spent the entire day scouring forums, the VA website and youtube to see if anyone had an answer and I'm coming up empty. Any help would be greatly appreciated, I do plan to call first thing Monday but would like peace of mind if anybody has insight. Thanks!

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  • Moderator

While I agree, at least in part, with broken soldier, the procedure is to acknowledge the unadjuticated claim as "deferred".  

However, "unadjudicated claim issues" occur frequently enough that the CAVC has addressed it calling it "deemed denied".  It suggests if you have multiple claims, and the VA adjudicates one or more, but does not address the other(s), then its "deemed denied", and the one year appeal period begins to run.  This portion of Veterans law is in constant flex and, later CAVC decision are more Veteran friendly.  

38 cfr 3.103 does address this very thing, in the first sentence, which states:

Quote
§ 3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

The CAVC decisions seem to conflict with 3.103.  

My advice:  You can try any one, or more things, probably in this order. 

1.  Call Peggy (the 800 number and ask the status).  You can speak with your VSO or attorney if you have one and ask them the same question.  Your VBMS file (sometimes called the efile, which your VSO should be able to read, may give more up to date information.    You can also email IRIS  and ask the same thing.  

2.  Send a 21-4138 and ask for the "status" of your issue which was not adjuticated.  As Brokenspoke indicated, you may get a decision, or at least a deferral.  

3.  File an appeal to the decision, disputing that you filed 3 claims and only 2 were adjuticated.  (File a NOD, you could try HLR on this).  

4.  In all cases, above, document that you have "continiously prosecuted your claim".  That is, keep a copy, at least electronic of every piece of paper you send VA, AND, best is if you send everything certified or registered mail return receipt requested.  Yours would not be the first "lost claim", if, indeed, that is what happened.  

5.  If you do all these things, and wait a sufficient period of time, (say 3 months), you can consider filing a writ of mandamus to compel the VA to comply with 38 CFR 3.103, providing a written decision on your claim.  

 

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  • Community Owner

Both the Mod's gave good advice. I will add that the VA doesn't play basketball very well ie they drop the ball quite often. I have had the same experience as of late. The VA closed out the same claim 4 times before they took action the 5th time because I raised hell with the Whitehouse  Hotline. There excuse was I was using the wrong form I was not. I would start with 800 Betty ask them about the claim to get the easiest answer you will need to original claim date. if they can't find it or they give you a stupid answer I would call the Whitehouse  Hotline, 855-948-2311

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As usual Broncovet has given good advice.  I like item No. 3 and 4.  Be very clear in your written statement that they failed to adjudicate/process your claim/s specifically the one they failed to address and you have not withdrawn or cancelled that claim.  Make copies and send certified return mail. 

Be sure to use their reference numbers at the top of their letters to you and the date of their correspondence.  Include copies of those correspondence with your inquiry or NOD or HLR. Of course keep copies of your written responses.  Below your signature list a copy going to your Senator and Congress person.  Worked for me many times. I do practice overkill.

My comment is not legal advise as I am not a lawyer, paralegal or VSO.

 

Edited by Dustoff1970
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So I have been thinking about this issue because it affects me on one or more of my issues. I remember reading somewhere that a (Might have been BVA) claim that VA failed to address constitutes an open claim until the VA renders a decision.  It may be tied to the Reg broncovet listed above. I (We) may revisit it when I get time to dig deeper on my PC I am sure If I found the above I squirreled it away somewhere. 

That's why Dustoff1970 advice is also exolent. I purty much follow it when I do a claim. The rule is document everything and keep copies. 

Also I had the same experience just after the first of the year I had to file 5 of the same clam until they took the last one. There only reason was they claimed I was using the wrong form. If I had used there form I would have forfeited 42 years in retro pay. As it stands now because I stuck to my guns they commited one or more CUE issues. 

As the above is a little above what most Vet's who come here's skill set I would suggest  you follow some of the advice above. Write the date down of their decision. And keep it in mind the 1 year deadline. 

I you can take a sharpy and black out you identifying information. (Name address social security and any claim numbers.) Post it hear so we can analyze it. Mots of us have learned to look at things that most Vet's over look in there decision letters.

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  • Greeter

I’ve had this happen to me. Have you ever been denied at the regional office for migraines? If so you need to reopen with new material evidence as a supplemental claim. The Va will close the claim of it’s a previous denied claim.

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