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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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pete992

Cue Clear And Unmistakable Error

Question

Hello this is my first post and like many veterans I need your thougts on an issue of appeal. Can someone let me know What this really means. Will I get my change of effective dates or is the BVA joking around also had three issues denied in 2005, filed a NOD in 2005 was sent a SOC in 2006 and returned a form 9 in 2006 and didn't get a response until 2008 with this appeal. wow what is really going on? Citation Nr: 0845064

Decision Date: 12/31/08 Archive Date: 01/07/09

DOCKET NO. 06-29 381 ) DATE

)

)

On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO) in

Louisville, Kentucky

THE ISSUES

1. Entitlement to an effective date earlier than September

29, 2005, for the assignment of a 60 percent rating for

psoriasis.

2. Entitlement to an effective date earlier than September

29, 2005, for the assignment of a 30 percent rating for

irritable bowel syndrome.

3. Entitlement to an effective date earlier than February

18, 2004, for the assignment of a 30 percent rating for a

mood disorder.

4. Whether new and material evidence has been received

sufficient to reopen a claim of entitlement to service

connection for hypertension, and, if so, whether service

connection is warranted.

5. Whether new and material evidence has been received

sufficient to reopen a claim of entitlement to service

connection for migraine headaches, and, if so, whether

service connection is warranted.

6. Whether new and material evidence has been received

sufficient to reopen a claim of entitlement to service

connection for neck and back pain, and, if so, whether

service connection is warranted.

WITNESS AT HEARING ON APPEAL

Veteran

REPRESENTATION

Veteran represented by: The American Legion

ATTORNEY FOR THE BOARD

J. B. Freeman, Associate Counsel

INTRODUCTION

The veteran served on active duty from June 1986 to July

1994.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a May 2006 rating decision of the RO

in Louisville, Kentucky, which granted increased ratings of

60 and 30 percent for psoriasis and irritable bowel syndrome,

respectively, effective September 29, 2005. The issue of an

earlier effective date for a 30 percent rating for a mood

disorder arises from a December 2004 rating decision. The

petitions to reopen service connection claims for

hypertension, migraine headaches and neck and back pain arise

from a May 2005 rating decision.

The veteran testified before the undersigned at a May 2008

videoconference hearing. A transcript has been associated

with the file.

The veteran has also submitted statements, the first in May

2007, to the effect that his service connected psoriasis and

its treatment damages his clothes, creating a financial

hardship. The Board finds that these statements are

sufficient to make a claim for a clothing allowance. See

38 C.F.R. § 3.810 (2008). The matter is REFERRED to the RO

for appropriate action.

The appeal is REMANDED to the RO via the Appeals Management

Center (AMC), in Washington, DC. VA will notify the veteran

if further action is required.

REMAND

The veteran's earlier effective date claims must be remanded

to afford the veteran due process. The RO granted a 60

percent rating for psoriasis and a 30 percent rating for IBS

in a May 2006 rating decision. The veteran filed a Notice of

Disagreement that same month. The RO adjudicated the

veteran's disagreement with the effective dates assigned for

his 60 percent and 30 percent ratings as earlier effective

date claims. While the veteran has pursued the claim as

developed by the RO, the veteran's May 2006 Notice of

Disagreement also made two motions for revision of prior

rating decisions on the basis of clear and unmistakable error

(CUE). These motions attempt to establish the same benefit

in a collateral attack on prior decisions. The first motion

indicates that the November 2003 rating decision implementing

his previous 30 percent rating for psoriasis must have been

in error because use of a corticosteroid, the grounds for his

60 percent psoriasis rating, had begun in 1997, well before

the November 2003 rating decision. He indicated that "the

VA would correct the mistake" if he reapplied for benefits.

The second motion stated that the RO had mistakenly service

connected him for gastroesophageal reflux disease (GERD) and

duodenitis in his original October 1998 rating decision, when

in fact he had IBS, and bore that diagnosis at that time.

Correctly rated, the veteran argues that his initial rating

would have been 30 percent, not ten percent. The Board

concludes that the veteran has adequately pled these CUE

motions. See Russell v. Principi, 3 Vet. App. 310, 313-314

(1992). The RO did not adjudicate either CUE motion.

If these motions are granted, the appealed earlier effective

date claims presently before the Board would become moot. As

a result, the CUE motions and effective date claims are

inextricably intertwined. See Parker v. Brown, 7 Vet. App.

116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)

(issues are "inextricably intertwined" when a decision on

one issue would have a "significant impact" on a veteran's

claim for the second issue). Accordingly, the effective date

claims must be remanded to provide the RO the opportunity to

address the CUE motions in the first instance. See Bernard

v. Brown, 4 Vet. App. 384, 394 (1993).

Other matters must also be remanded. The veteran is service

connected for a mood disorder. In December 2004, the veteran

was granted an increased rating of 30 percent in a RO rating

decision. A June 2005 report of contact indicates that the

veteran claimed to have filed a claim for reconsideration of

the effective date of his recent increase. As this is the

only increase in compensation for the prior two years, the

Board concludes that the veteran was attempting to

disagreement with the effective date determination. The

Board concludes that the veteran has submitted a timely

Notice of Disagreement as to the effective date for the

assignment of a 30 percent rating for a mood disorder. The

claim must be remanded to allow the RO to provide the veteran

with a statement of the case (SOC) on this issue. Manlincon

v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v.

Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9

Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-

92). However, the issue will be returned to the Board after

issuance of the SOC only if perfected by the filing of a

timely substantive appeal. See Smallwood v. Brown, 10 Vet.

App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.

Finally, the veteran has several claims pending which are in

various stages of appellate development, to include claims

for earlier effective dates and petitions to reopen claims

for service connection for hypertension, migraine headaches

and neck and back pain. When the veteran testified before

the undersigned, only the effective date issues were

addressed. There is no indication that he was not given an

opportunity to testify as to all of the matters on appeal.

Nevertheless, since this case has to be remanded he must be

extended the opportunity to present at another hearing to

discuss the matters that were not presented at the May 2008

Board videoconference hearing.

Accordingly, the case is REMANDED for the following action:

1. The RO should adjudicate the motions

of CUE as to the November 2003 rating

decision that assigned a 30 percent rating

for psoriasis effective from August 30,

2002, and the October 1998 rating decision

that assigned a 10 percent rating for

GERD.

2. If the CUE motions are denied, the RO

should readjudicate the earlier effective

date claims on the merits. If the

benefits sought are not granted, the

veteran and his representative should be

furnished a SSOC and afforded a reasonable

opportunity to respond before the record

is returned to the Board for further

review.

3. Provide the veteran with a statement

of the case as to the issue of an earlier

effective date for the assignment of a 30

percent rating for a mood disorder. The

veteran should be informed that he must

file a timely and adequate substantive

appeal in order to perfect an appeal of

this issue to the Board. See 38 C.F.R. §§

20.200, 20.202, and 20.302(:rolleyes:. If a

timely substantive appeal is not filed,

the claim should not be certified to the

Board.

4. Schedule the veteran for a hearing

before a Veterans Law Judge at the RO on

the issues of the petitions to reopen, if

he so desires, and notify him of the

scheduled hearing at the latest address of

record. This hearing is to be scheduled

in accordance with applicable law.

The veteran has the right to submit additional evidence and

argument on the matter or matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law

requires that all claims that are remanded by the Board of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

_________________________________________________

K. PARAKKAL

Veterans Law Judge, Board of Veterans' Appeals

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The BVA is ordering the VA to act on your CUE claims.

They have also ordered the AMC to act on the petition to re-open.

I suggest that you make additional argument and send them any other pertinent evidence you have specifically regarding th Cue Issues and the re-open petition.

Make sure that the AMC has all of the evidence.They destroyed or lost my evidence -that the BVA had acknowledged in the c file ,within 2 months after getting the remand.

Do you have a lawyer or a vet rep helping you with this?

You did great so far!

"The Board

concludes that the veteran has adequately pled these CUE

motions. See Russell v. Principi, 3 Vet. App. 310, 313-314

(1992). The RO did not adjudicate either CUE motion"

Often CUEs are denied without prejudice because they have not been prepared well.

Your CUE makes sense to me.

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Pete, the remand back to the Louisville RO to straighten this out is a good thing. Overall Louisville is a Good RO in its present state. They have had problems in the Past.

The Original Manager in 1998 was a complete and utter denying machine as several claims, yours and mine included have shown to contain Cues.

Expect the current folks to do the right thing and get it done for you.

Keep us Posted.

J

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Hey J and Berta, I do not have a lawyer. I do have a vet rep who I talk to for advice every now and then. Most of the evidence is already in my file, my problem is my file has about seven or eight volumes and when I filed my claims they did not want to go through all those sheets of paper like they were supposed to. I keep copies of everything I send them and they send me. I also read over and over again what they send me and when I send them something I not only certify it. I make it signature return receipt. That way if it gets lost or misplaced I have proof it was there and I could always send another copy but I have my proof that someone had it at one time or another. I used to work for VA so I learned a Little bit but I do not trust them. I have already sent in more evidence to both the BVA and the AMC in reference to the earlier effective dates and kept a copy of it. I am not sure of the next step, will the AMC try to process the earlier effective dates or will they send the entire file back to Louisville to wait for my new hearing. Sounds like it should go to the Louisville but not sure why it has to go to the AMC.

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It was remanded back to the Louisvile Ro. If it were going to go to the AMC then It would have said Appeals Management center.

Who is your POA.

Which VAMC do you use?

J

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I do not have a POA, my POA refused to go to my May 2008 hearing with me and I went alone. He also denied further representing me and now my file states I do not have a POA, as for the VAMC, Nashville. also my file is currently at the AMC

The appeal is REMANDED to the RO via the Appeals Management

Center (AMC), in Washington, DC. VA will notify the veteran

if further action is required.

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