Cue Or Not

[diceman97]

hi all i was denied sc for sinusitis in 2003 for no medical evidence, the claim was reopened in 2011 sc was granted in 2012 for sinusitis, the va c&p doctor said the medical evidence for sc was in my c-file, can i ask for a erlier efective date or do i have to ask for a cue thank to all in advance

[broncovet]

Yes, you can ask for an earlier date. Whether you will get it or not remains to be seen. If you did not appeal the denial in 2003, it limits your options. As you stated, one option is to "CUE" the 2003 decision.

Another option (better than CUE) is to cite 3.156 C or 3.156 (b).

You should read over those regs.

3.156 C is "newly discovered SERVICE records". If the VA could not find your service records and finds them later, you may be able to get an effective date back to 2003 and would not have to meet the "CUE" standard of review.

3.156 B is reopening due to new and material evidence. When you submit the "new and material evidence" has a bearing on your effective date.

[diceman97]

thanks still a little confused i had forgotten i put a claim in for sinusitis in 2003 it wasint untill i claimed it in 2012 and saw the claim was a reopened claim rather than a new claim so what was my new and material evidence. i was granted sc for sinusitis and told to claim ryinitis spelt that wrong lol, wich i did and also granted sc. i am sorry have a hard time putting words and thoughts on electronic papper but just so confused.

[broncovet]

Diceman

I dont know what your new and material evidence was. You will have to review your medical records and your C file to figure that out, I cant do that for you.

New and material evidence normally means new MEDICAL evidence. If you saw a doc and he offered a diagnosis or his medical opinion, and this was unknown before, then that would be "new evidence". "Material" evidence means that it is important to the outcome of your case. If my claim was for "knee pain" it probably would not be "material evidence" if I went to the doctor about a cold.

[diceman97]

hi and thanks for you paitents broncovet i will try to clear this up some, i submitted my claim for sinusitis secondary to my sc asthma, the va reopened the claim i then turned in medical evidence that i had ben diagnosed and treated for this i was then sent for a c&p were the va doc said i had sinusitis and ryinsitis with polyps documented in my c-file, but didint give a medical opinion the the va sent a letter to the doctor asking for one the doctor stated that it was at least as likley as not the sinusitis was secondary to my sc asthma. i hope this makes some sense, i guess what im asking was it my new evidence or the va doctors new evidence

[carlie]

hi and thanks for you paitents broncovet i will try to clear this up some, i submitted my claim for sinusitis secondary to my sc asthma, the va reopened the claim i then turned in medical evidence that i had ben diagnosed and treated for this i was then sent for a c&p were the va doc said i had sinusitis and ryinsitis with polyps documented in my c-file, but didint give a medical opinion the the va sent a letter to the doctor asking for one the doctor stated that it was at least as likley as not the sinusitis was secondary to my sc asthma. i hope this makes some sense, i guess what im asking was it my new evidence or the va doctors new evidence

The Reasons and Bases Section of the decision should state exactly

the how's and why's of the decision.

Read it over thoroughly several times, break each sentence down if you need to

and check / compare it against/ to the Evidence Section.

It will tell you exactly what N&M evidence was factored in.

If it refers to STR's/SMR's - you might gat an eed citing 38 CFR 3.156c.

3.156 New and material evidence.

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

Cross References: Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]