Clues (by the BVA) for CUEs

[Berta]

I mentioned here before that sometimes the BVA will give the claimant a "clue' on something. They did on a very old decision I got, as the BVA case had been rendered moot by am award at6 the RO and I didn't know I should have withdrawn the claim from the BVA docket.

Here is a Beautiful CLUE from the BVA to this veteran:  I LOVE IT!

"The Board notes the veteran's disagreement with this date. 
Although sympathetic to this claim, the Board cannot grant an
effective date earlier than the date the claim to reopen was
received.  There is nothing in the record to suggest that VA
actually received a claim earlier than February 7, 1997.  The
law and the regulations are controlling in this case. 
Sabonis, 6 Vet. App. 426.  Therefore, the Board finds that
the criteria for assignment of an effective date earlier than
February 7, 1997 for the grant of service connection for
schizophrenia are not met.  The Board notes that the February
7, 1997 date represents a claim to reopen a previously
finally decided claim.  The veteran has not asserted clear
and unmistakable error in any previous Board decision.  If an
earlier Board decision is found to be erroneous pursuant to a
claim for CUE, then the date of the veteran's grant of
entitlement to service connection may be affected.


ORDER

Entitlement to an increased original evaluation for
schizophrenia to 60 percent is granted, subject to
regulations governing awards of monetary benefits.

Entitlement to an effective date earlier than February 7,
1997, for the grant of entitlement to service connection for
schizophrenia, is denied."

 

http://www.va.gov/vetapp04/Files2/0419818.txt

I will repeat  the CLUE:

"The veteran has not asserted clear
and unmistakable error in any previous Board decision.  If an
earlier Board decision is found to be erroneous pursuant to a
claim for CUE, then the date of the veteran's grant of
entitlement to service connection may be affected."

You Bet!!!!!  The veteran needs to file a CUE on the initial claim that was denied for schizophrenia.

The very fact that the claim had been re-opened indicates there was a previous denied claim for the same disability.

The BVA is correct...re-opens get the date of the re-open as the EED. It is CUE that can bring a far better EED.

Whenever a SC is awarded, on a claim for the same disability that had been denied in the past, the claimant should sure over the CUE regulations here very carefully,

and if those regulations, in existence at time of the potential CUE,  and the documented probative medical evidence was in VA's possession at time of the denial, they should file CUE.

It just makes sense.

 

 

 

 

 

[Berta]

Maybe to add, the BVA's clue I mentioned was that, if I succeeded at direct SC death (it had been an 1151 death award by then) I would recover my entire FTCA offset to my DIC.   Over $ 59, 000 in offset ( and I would also be eligible for many ancillary benefits they did not state in that decision)

Many years later I succeeded in a direct SC death claim because my husband had DMII from AO (never diagnosed or treated by VA) but instead of trying to claim this under 1151 as it was more malpractice I had uncovered, I instead gave the claim a lot of thought as to how to word it , not stating 1151 at all, but as a claim for direct SC death.

I provided the VARO ,when they got the BVA award on that, with the BVA's past decision regarding the refund. What a lot of misery That was...the RO refused to read or consider it at all. I called the General Counsel and the VA lawyer was exasperated to hear from me again because he told me, after the settlement ,that I had really been tough with them) True. It then took a letter or a fax from some OGC honcho telling the RO to pay me the offset refund. What really got me is that my RO ignored a probative statement from the BVA, based on established VA case law....I had sent them the whole past BVA decision. That was not a 'remand', it was an award they had to adjudicate.

But since then I have noticed here that ROs are NOT complying with remand orders from the BVA well at all......

And this is why we must either follow the remands ourselves, as I did in 2009, on a different issue, or aggressively attack anything the remand order generates that is wrong medically or legally....and send your rebuttal directly to the BVA.

And read those BVA decisions you get Very Carefully.

[Vync]

This makes me want to go back and re-read my prior BVA ruling decisions.

[Jimmer]

Berta (and others) I have a situation in which I was  awarded a SC  disability for my eyes in 2014, with a retro payment from 2007.   I had initially filed the claim in 1970, and again in 1978.  The evidence is in my SMR.   The difference in 2007,  was that I had a VSO working on my behalf, and I provided "nexus" letters as well.  The point is the information is documented in my service medical records.  When I was denied in 70' & 78' all the V.A. stated that it was "not a service connected disability".   I do feel that the disability should go back to 1970.   Am I off base?

[broncovet]

Jimmer

    Yours is a good question and I ask that you start a new post and ask it.  We start a "new" post, with a new topic for each question so that people are not confused if you are talking about the original poster or the later question.  You will get more answers that way, as some people wont respond to posts they feel are hijacks.  Thank you.  

    Berta

     This is a great idea!  I dont know how I missed this other than I had a lot going on in my life.  However, here is what I dont get:

    38 CFR 3.156 (b) suggests that EITHER CUE or reopening due to new evidence should net the same effective date as long as the reopening occurred within the appeal period.  And, the fact that the board mentioned it, indicates the Veteran or his rep "raised the issue" (reopened due to 3.156).   

    I think this board decision would likely be overturned on appeal because of 3.156 b.  This reopening was in the appeal period, or else the Board would not have jurisdiction to bring up that issue.  You see, the Board can not decide any issues unless the Veteran gives the Board jurisdiction by a timely filed not, and "perfecting the appeal" with an I9.   The VA is required to follow its own regulations the first time.  We should not have to ask the court to require the board follow VA regulations over and over again.  

    I also think the difference that your decision cited is important.  The board suggests its a CUE, while the Veteran apparently attempted to reopen under 3.156, INCLUDING 3.156(b).  The VA has to comply with ALL regulations not just comply with regulations they feel are in its best interest to comply with.   I think this Board decision IS in error, as it failed to apply 3.156 b and award the earlier effective date.  

There should be (underline the word SHOULD) no advantage to the Veteran by filing a CUE when a reopen should suffice to accomplish the same purpose, in the event there was applicable new evidence, and that evidence was resubmitted in the appeal period under 3.156 b.  This is simply a manipulation by the board, requiring the VEteran to know the subtle differences between cue and 3.156, when the VA is required to maximize the Veterans benefits, not "cut" his benefits for not dotting an I.  

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

Edited March 27, 2016 by broncovet

[Berta]

I agree Broncovet...the problem with finding CUE in older decisions is that I assume they gave no evidence list or any Reasons and Basis.

If the VA never obtained SMRs for example...that can be a CUE basis, on an older denial, but how do we know ,in those very old decisions?

Then again a C file going back to the 1970-1980s could reveal a lot.

[Jimmer]

Thanks broncovet, I will do so, with more details.