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Just a couple of questions...

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acz3inbigd

Question

If the VA decision letter states a veteran has one year to appeal, and before the year is expired the VA closes his appeal then what recourse would the veteran have.

What You Should Do If You Disagree With Our Decision

If you do not agree with our decision, please download and complete VA Form 21-0958,
“Notice of Disagreement”. You can download the form at http://www.va.gov/vaforms or you
can call us at 1-800-827-1000. You have one year from the date of this letter to appeal the
decision.
The enclosed VA Form 4107, “Your Rights to Appeal Our Decision,” explains your
right to appeal.

A veteran files a claim for an injury to his [L] foot, and his [R] for plantar fasciitis resulting from his service connected injuries, if he has no relief from non-surgical or surigical treatment on his [L] foot and and candidate for surgical relief on his [R] foot but refuses to elect surgical treatment, then what principle would the VA follow to rate his degree of disability?

Last question, what rating would  a veteran receive for bilateral plantar fasciitis without a diagnosis of plantar fasciitis?

I would appreciate hearing what your answer might be.  Thank you.

 

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So no matter if the VA closes it on their end, the Veteran still has that year to file the appeal.  They just have to file.

As for the foot question, it all depends on the service connected disability.  If one is conneceted and the other is not, then the veteran needs to work to get them connected.  As far as surgery is concerned, there are times it can make it worse.  Thus resulting in a higher raiting if the veteran claims it.  It would be based on how the VA rates said disability and if they are service connected or not (Secondary count also).

For the last question, you would not get rated for something without a diagnosis.  You must see a doctor and you would need to have a diagnosis.  Now you can claim said condition and they will send you to a doctor to see if you have said condtion.  Then you have to hit the clausal elements to make sure they service connect it.

If you do not have medical evidence from when you were in, you can use Lay statements and buddy statements to show you had them in service.  Or if you have a service connected condition that aggrivates your feet.  

 

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On 3/11/2024 at 2:29 PM, ShrekTheTank said:

So no matter if the VA closes it on their end, the Veteran still has that year to file the appeal.  They just have to file.

So is that a common occurrence where they will tell someone their appeal is closed when they still have time to file?

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13 hours ago, acz3inbigd said:

So is that a common occurrence where they will tell someone their appeal is closed when they still have time to file?

The claim would actually be closed but that only starts the one-year appeal period. If your decision came from the VA Regional Office, the veteran has one year to appeal. If this was a BVA appeal, the veteran has something like 120 days to appeal to the CAVC. Ratings are based on the symptoms of severity. 

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Documentation, documentation, documentation.  That is exactly why some Veterans file the NOD "certified mail return receipt requested".  Once the NOD is filed, within the year period, the effective date and appeal rights are preserved, no matter what a VA employee tells you, that green martians told them to tell you that your appeal has been closed.  Top Secret:  VA employees lie to Veterans.  Top Secret number 2:  Ebenefits/va.gov is generally done by 3rd parties and the VA is not held accountable to that information.  Exceptions:  "Letters".  When you go to ebenefits and can print out an offical letter that says you are 100 percent, well that is official.  In a similar way, you can often (now) download VARO decisions, which are likewise binding on VA.  However, those "information" blurbs on ebenefits/va.gov are pretty much BS and not binding and mean very little.  

If ebenefits/va.gov says, "claim closed", while you should get to the bottom of this, it does not always mean much, other than you have to wait for the envelope/the ability to download the VARO decision.  

Note:  EVEN Tho "Claimants have a right to a written decision", the CAVC has weakened that, substantially.  

Indeed, the CAVC has ruled when the Board rules on issue 1, and makes no mention of issue 2, then issue 2 is "deemed denied", that is denied without a written decision.  

38CFR 3.103:

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.

(b) The right to notice

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice will clearly set forth the elements described under paragraph (f) of this section, the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section, the right of representation, and the right, as well as the necessary procedures and time limits to initiate a higher-level review, supplemental claim, or appeal to the Board of

 

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My 01/31/21 NOD was filed on a 10182.  I think it is required now.  I faxed it to the Evidence Center and the request for expediting because of age.  The BVA Decision was dated 11/29/2022.  The CAVC remand is dated 10/26/23.  So moving fairly quickly for me.  Should be back at the BVA soon but suspect it is taking longer because of the remand and the clerk will not be able to get away with not doing the required work this time.  CCK is representing me on my SMC claims for me and my wife.  I guess they will also have to take the remand but will not take the PCAFC denial.  Have to call one of the class attorneys for that from Beaudette & Beaudette v McDonough.  It is a VAHA decision not a VABA decision is the reason as I understand.  Seems to me since I am at the BVA, that issue could also be decided.

 

 

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