Question:

Hello Jim, It has been a while since I last wrote you. Question: Can a Non availability of service medical records be issued as a decision to close a reopened claim.

Summary: The claim was reopened in July 2013, within one year of the previously May 2013 rating decision. It remained opened until  November 2015 when a " Non availability of service medical records" was issued that stated "if no evidence was submitted within 10 days, a decision would be made and a notification would be mailed."   Had not received anything since that November 2015 VA letter. Sent in an inquiry March 2016 and VA construed it as a claim to reopened, subsequently granted in Jan 2018 based on new and material evidence with 2016 effective date based on the March 2016 inquiry. Thank you in advance! Stay safe!

Jim's Reply:

"Can a Non availability of service medical records be issued as a decision to close a reopened claim"

Yes. The lack of necessary records at a moment in time doesn't preclude future decisions if records are discovered. However, since the original decision to deny was made without the records necessary for an affirmative decision, there is no retroactive benefit to the veteran since the decision to deny was made with the best available evidence.

That you say you didn't receive notice of a denial since a November 2015 letter doesn't carry any weight since you can't prove you didn't get a letter VA will say was timely sent.

I think the appropriate effective date is the one awarded, March 2016.