Pending Claims Doctrine

[1776Marine]

Since, the development of the Pending Claims Doctrine, would fully developed claims, from 1979, that had never been adjudicated, still remain pending?

[pacmanx1]

7 hours ago, 1776Marine said:

Since, the development of the Pending Claims Doctrine, would fully developed claims, from 1979, that had never been adjudicated, still remain pending?

The answer to your question is if everything on your part was correctly completed, then I would say yes most definitely. I filed a claim in 1998, and it was denied, and I immediately filed a NOD, the regional office lost my NOD. I reopened my claim years later and the regional office once again denied my claim. This time they actually processed my new claim, and it was granted by the BVA. The regional office low balled my rating, and it was finally granted as an unadjudicated claim with the correct 1998 effective date, but my claim has been hamster wheeling between the BVA and the CAVC trying to get my correct rating percentage. The BVA finally got my correct rating percentage but that caused another issue because each decision complicates the veteran's combined (overall) rating. Since I was already rated as 100% schedular, it created several EEDs (EARLIER EFFECTIVE DATES) of TDIU, but the regional office has not made their final decision.  

So, yes, the claim should remain open and pending. Pay very close attention to both your rating percentage and your effective date once the VA makes their decision. 

[Lemuel]

8 hours ago, 1776Marine said:

Since, the development of the Pending Claims Doctrine, would fully developed claims, from 1979, that had never been adjudicated, still remain pending?

I had a 1987 "undeveloped claim" for October 1987 extra schedular TDIU that was remanded in a De Novo review of my records by BVA Judge Marjorie A Auer remanded for development.  I was granted TDIU back to September of 1985, the last date of my full-time work in April of 2020.

Edited August 9 by Lemuel
clarify

[john999]

L.....what a great win for you. I filed a CUE for 100% going back to 1971 but got shot down at Court of Vet Appeals.  I was fool enough not to have appealed my original rating in 1973.  

[Rattler]

When you have a fully developed claim from 1979 and the VA has never officially closed it. Or if you never received a decision letter it is considered an open claim.  There are both BVA and Court of Veterans appeal cases on it. 

[1776Marine]

In response, to this the original claim was denied, basis of denial was identified by the RO " For failure to appear for a scheduled C&P examination"  the evidence in my possession " Is undeniable error committed by the VARO adjudicater" the evidence that supports a CUE, meets the criteria established and identified in Title 38 CFR it is well documented and self evident that, the Veteran properly notified the VARO of a change of address request, prior to any initial claims correspondence from the VARO adjudicater, on or about November 1979 the VARO adjudicater sent correspondence to the VAMC per my request to send any and all correspondence to the VAMC where I was being treated for a service connected condition, that piece of correspondence was addressed to the VAMC, the document sent by the VARO adjudicater, was an acknowledgement of my initial claim of June 1979, having been a fully developed claim, the VARO adjudicater again sent another piece of correspondence, to the  VAMC "To Wit" a statement that the VARO adjudicater lost my file . Beyond November 1979, no further correspondence was received or sent to the VAMC by the VARO adjudicater.  The records of correspondence beyond November 1979, were sent to an address I no longer resided at, in this instance, any further correspondence submitted by the VARO adjudicater beyond November 1979 went to the wrong address, proof production of factualzed documentation supports unequivocally the Veteran was never properly notified. I cannot over emphasize, the life changing events and trauma that has impacted and devastated this Veteran in the interim of discovering the sequence of events.  In every instance of this claims process, the Veterans right to " Duty to Assist" , the right to " Reasonable Doubt" etc..... was denied.

[broncovet]

This is tough, and CUE may not be your answer.  CUE errors are specific, and they specify that a cue error must be based on evidence "at the time of decision".  Yes, I agree we can look at this an say, "gee thats an error" on VA's part.  But CUE is "not just" an error, but  a specific kind of error.   I may be an athlete, and all olympians are athletes, but that does not mean Im an OLYMPIC athlete.  No, I dont come even close to qualifying as an Olympic athlete, because I did not participate in Olympic trials, and because Im not good enough to compete in them.  

IN a similar way, this is an error, but probably is not cue.  

Here is the way I recommend proceeding.  

1.  Fix the problem, then re apply.  Get your medical reccords and see what was missing to require a c and p exam.  A c and p exam would need the following:

a.  A nexus, or doc opinion that your condition applied for is "at least as likely as not" due to an event in service, and you do need a current diagnosis of disability.  Finally, your doctor will need to document your symptoms, because your rating will be on symptoms.  No nexus, no SC.  

b.  To fix this problem you have, as I see it, two choices.  You should be able to identify the problem by reviewing your medical records.  THere is a good chance there is no nexus or that symptoms were not documented.  

The first choice is to go to another VA doc and find one who will provide a valid nexus.  If your VA doc wont do this (many/most wont) then you will need to hire your own doctor, and have him provide it, "In a format" the VA wants for nexus.  

2.  After re applying and fixing the problem (such as lack of nexus), you still may have to appeal again.  Get used to denials, I have had dozens of them, but I got past them, mostly with persistence and advice similar to what I have given you above.  Persistence wins when other things dont.  

      Yes, its frustrating and maddening that VA may well have never sent you a request for c and p exam, or sent it to an old address.  Yes, that is an error, but its probably not a cue error.  Most often when I did win benefits, it was "not" the way I thought it would be, it was something different, but it worked.  

     As my father once said, "when you are stuck in the mud, dont keep just spinning your wheels.  Instead, get off  and figure it out.  You may need a jack, a pull from another vehicle, or something else, but digging deeper and deeper into the mud does not help".