filing for a different claim

[shadowcat5205]

when I retired from the Army I filed for what I thought was a back injury. The Service Rep I had at the time (American Legion) submitted for a spine. When I recently asked to be considered for an upgrade (from 10%) for "back injury) I was denied and the denial stated that I have never filed a service connection for my back.

What form do I use now to file a new claim? Should I refer the new claim to the recently denied claim.

The original injury is in my medical records (Dr visits) and with a Line of Duty Investigation (the same LOD for the same incident where both my back and shoulder were injured)

Thanks for any advise.

[TinCanMan]

Hmmmn... That sounds a bit strange. Normally the VA would have tried to figure out what you meant by "back" and would have come to understand it was your spine you were talking about. Sigh... probably caught a decisionmaker on a bad day.

If within 1 year of decision for increase submit a Notice of Disagreement (tell them what you disagree with) and tell them the real name of the original condition along with its diagnostic code. You can get both off the original decision. Tell the VA you intended this condition and not "back". Ask for a DRO review and not a traditional appeal.

If it is over 1 year ask for a new decision on the spine. Tell them this is what you meant all along and reference the decision with the denial. Hopefully, they'll use the original date as the earliest effective date of request.

All of this can be done on plain paper. Be sure you include your full name, address and SSAN. Send it to the nearest RO

[shadowcat5205]

Thanks. I originally submitted when I retired from the Army in Jan 2006. I was found at 10% for my back and 10% for my shoulder.

Things have worsened so last June I resubmitted for a review and was increased to 20% on my shoulder but 0% for my back. My original Rep was American Legion and he and I thought the cervical spondyloses was the back (both shoulder and back were busted up in the same incident).

I resubmitted using the DAV and since I received the decision last Nov (07) I have left a number of messages but he has not called back - I want to get this either on a NOD or resubmitted.

I will do the NOD and ask for a DRO but perhaps I should also submit an additional claim for the "back"? or should I wait until after the NOD / DRO decision?

Thanks for your advice.
Steve

[TinCanMan]

Read your original decision. Does it say you have an award for the back or the spine? What percentage? What diagnostic code ?

Your latest decision only includes shoulder 20% and Back 0%. What happened to spine?

If you file an NOD and a new issue, the new issue will be worked to conclusion before the NOD.

I'm not a doctor so I'd have trouble identifying what is back and what is spine. What does your doctors say your condition is?

[1968 Tet Vet]

That (in red, below) is interesting. I didn't know that, but appreciate your comment. That seems to be the case in my claim(s). For the VA to do it that way doesn't make much sense to me, but if thats their procedure, then... yes, I am glad to understand it more.

Thanks, TinCan Man.

Originally Posted by TinCanMan

Read your original decision. Does it say you have an award for the back or the spine? What percentage? What diagnostic code ?

Your latest decision only includes shoulder 20% and Back 0%. What happened to spine?

If you file an NOD and a new issue, the new issue will be worked to conclusion before the NOD.

I'm not a doctor so I'd have trouble identifying what is back and what is spine. What does your doctors say your condition is?

[TinCanMan]

I didn't know that, but appreciate your comment. That seems to be the case in my claim(s).

Which is precisely why I told you in another thread that you had mis-handled your own claim.

For the VA to do it that way doesn't make much sense to me,

Your C-file is necessary to the decision maker. He can't make a decision without it. Your C-file can only be in one place. It can be with an RVSR making an original decision, with a DRO making a DeNovo appeal or in DC with the BVA. the RVSR can't make a decision on a new issue while the file is with the BVA. Therefore the BVA will return the file to the RO (or the AMC these days) in the event of a new issue. When they return it, your appeal stops till the new issue is resolved.

[Vike17]

To expand on what TinCanMan said; the rational behind the reason why the VA will work all open issues/claims before they will decided an appeal is because once the Appeals Team makes a decision on a veteran's appeal and the veteran decides to further appeal his case to the BVA, there cannot be any open issues in the C-file when the claim is certified to go to Washington, D.C.

Vike 17

[1968 Tet Vet]

I see. In my case, I have not filed an "appeal" (form 9), just a NOD. Also, I thought there is a time-limit as to when the VA must provide a SOC after a NOD is filed ??? According to the IRIS response, they haven't started work on the NOD that I filed in May 2007.

[TinCanMan]

I have not filed an "appeal"

Well, yes you did. It's a two step process. In your case you simply haven't perfected your appeal until you file the form 9.

I thought there is a time-limit as to when the VA must provide a SOC after a NOD is filed ???

Citation please, where did you get that? I know of no requirement the VA perform in such a manner. The only expression of time as requirement on the VA is in the instance of a BVA remand. In that case the BVA requires the RO process the remand and provide a SOC, if they still can't grant the request, in an "expeditious" manner. Expeditious isn't defined.

According to the IRIS response, they haven't started work on the NOD that I filed in May 2007

Under Congressional pressure VA is required to place priority on all initial claims by War on Terror applicants. All other claims will take a back seat.

[1968 Tet Vet]

Thank you. I haven't researched it, yet, but agree that VA is not required to respond to a NOD in a certain timeframe. Thats on the Vet's back. The Vet must file an appeal (form 9) within 60 days of issuance of the SOC... or, drop the appeal, right?

Thanks for the info.

[TinCanMan]

Yes, that's so.

[1968 Tet Vet]

I do not believe that I have filed an appeal, yet. I don't believe that a NOD is a formal appeal. So.... lets get REAL... on this. Come on. Geeezzz. I can even still request a DRO Hearing, even after I filed my NOD.

[quote=TinCanMan;10542]Well, yes you did. It's a two step process. In your case you simply haven't perfected your appeal until you file the form 9.
QUOTE]

[TinCanMan]

I don't care what you believe.

[1968 Tet Vet]

NO.... but, you have NO right to be so beligerant. Who do you think you are, anyway?

Originally Posted by TinCanMan

I don't care what you believe.

[TinCanMan]

Who do you think you are, anyway?

Someone who doesn't care what you believe?

There is nothing more frightening than active ignorance. sigh...

[1968 Tet Vet]

I rest my case. End of story.

Originally Posted by TinCanMan

Someone who doesn't care what you believe?

There is nothing more frightening than active ignorance. sigh...