Effective Date?

[kent101]

Can I change my reopened claim effective date?

 

Edited February 2, 2017 by kent101

[Buck52]

''I'm going to appeal on ebenefits. The VA owes me a 2002 effective date. They denied my claim stating they had no strs. On my award letter it says strs were considered in the decision. The VA didn't get my strs until years after my denial. According to 38 CFR it doesn't matter if I failed to file a NOD since my claim was granted based on the strs the VA failed to get.''

Sounds like this veteran has a legitimate CUE if the VA failed to retrieve or assist  in getting  his STR'S back in the 2002 decision.  especially for the EED.

JMO

Edited February 26, 2017 by Buck52

[john999]

Remember that the VA will use the 2002 regulations if you are filing a CUE on a 2002 decision.   The VA did have a duty to make a good faith effort to get your service medical records and personnel records.  I had sort of the same problem but I had to use 1973 rules and I lost.   I would file the CUE and if it is denied hire a lawyer because you will be over your head in about 60 seconds.  When you file a CUE all the rules you rely on to give you any benefit of doubt go out the window.   If there is a shadow of doubt or any question what reasonable minds would have done you will probably lose.   I would file anyway because It sounds like to me you could win if they did not get your records and those records existed.   The VA will still claim that you had your chance to file a NOD and did not do it.   So you must prove the VA had your records when they denied your claim,  did not have your records,  or that they did have your records and did not consider them.     The proof in all on you in a CUE.  If it were me I think I would use the old fashioned way of filing the CUE.    Chances are good you will be automatically denied at the VARO since they claim they considered your records while you know they did not.  You say that the VA says in their rating decision that they based the rating on a review of your records.  You have to disprove this,  and I ask you if you can prove that they did not have your records when they made the 2002 decision?  If you can prove it then I think you may have a good CUE.  After my experience I would never say it is a sure thing.  If there is any question of "judgement" in your CUE you will lose.  If the VA denied your claim saying you never served and you have a DD214 that is the kind of error that results in a CUE approved by the VARO  IMO.  Ask   AskNod about CUE's and Berta, of course.   I won a CUE and it was the sort of error that you could  "See from the moon" to quote AskNod.

[kent101]

12 hours ago, Berta said:

After thinking about this, I wonder if the VA had a duty to even obtain the STRs in 2002, because something major might have been lacking,like diagnosis or stressor letter??? Was this for a PTSD claim?

Did you get a C & P at that time?

When VA said,in 2002 decision,  they had no STRs did they state they attempted to get them from NPRC?

 

The denial letter I got said the reason for being denied was they had no medical records. The VA got the records from the service department two years later. When I filed the claim I didn't give a stressor letter. I just stated I  believe I had PTSD. I wasn't given a c&p. I think the VA tried to get the medical records from NPRC but they weren't there. I think the records were lost at ft. Campbell, ky. The only evidence I sent in with my claim in 2002 was the label on my bottle of zoloft I was given in the military before I left. I figured that was enough to let them know I was being treated for a mental disability in service.

 

I remember it well because I was so upset. I couldn't believe they lost my medical records and denied me because of it. I felt so hopeless I didn't see the point in filing a NOD. 

Edited February 27, 2017 by kent101
Update

[Buck52]

Jonh999 is correct  they will use the CUE Regs in 2002.

here is some more CUE Regs.

http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

[kent101]

7 hours ago, john999 said:

Remember that the VA will use the 2002 regulations if you are filing a CUE on a 2002 decision.   The VA did have a duty to make a good faith effort to get your service medical records and personnel records.  I had sort of the same problem but I had to use 1973 rules and I lost.   I would file the CUE and if it is denied hire a lawyer because you will be over your head in about 60 seconds.  When you file a CUE all the rules you rely on to give you any benefit of doubt go out the window.   If there is a shadow of doubt or any question what reasonable minds would have done you will probably lose.   I would file anyway because It sounds like to me you could win if they did not get your records and those records existed.   The VA will still claim that you had your chance to file a NOD and did not do it.   So you must prove the VA had your records when they denied your claim,  did not have your records,  or that they did have your records and did not consider them.     The proof in all on you in a CUE.  If it were me I think I would use the old fashioned way of filing the CUE.    Chances are good you will be automatically denied at the VARO since they claim they considered your records while you know they did not.  You say that the VA says in their rating decision that they based the rating on a review of your records.  You have to disprove this,  and I ask you if you can prove that they did not have your records when they made the 2002 decision?  If you can prove it then I think you may have a good CUE.  After my experience I would never say it is a sure thing.  If there is any question of "judgement" in your CUE you will lose.  If the VA denied your claim saying you never served and you have a DD214 that is the kind of error that results in a CUE approved by the VARO  IMO.  Ask   AskNod about CUE's and Berta, of course.   I won a CUE and it was the sort of error that you could  "See from the moon" to quote AskNod.

I didn't have my medical records but I did have a bottle of zoloft they gave me before I left the military. The bottle had my name on it, the zoloft dosage and the name of the military medical clinic that issued it to me. I tore the label off the bottle and sent it in with my 2002 claim. Isn't that evidence as good as a medical record, a buddy letter and a photo? I'm still within the one year to file a NOD for the 2002 effective date too. I haven't done it yet.

[broncovet]

When in doubt, file the NOD.  

This is somewhat complex, and you probably need a lawyer.  There are many things going on here, and WE dont know all of them.  

An experienced lawyer can look at your file, and determine what is best here:

1.  38 CFR 3.156 "reopened claim"  (Likely)

2.  CUE  (less likely)

3.  Something else.  For example, your 1 year appeal period is tolled if Va did not send you notice of your rights to appeal, but that may not have applied in 2002.    Your attorney can look for more.  

     In all cases, Filing the NOD wont hurt you, tho there may be circumstances where you withdraw the NOD.  (For example, if you file a 3.156 and your earlier date is awarded, then the Nod becomes moot.  )