Scottish_Knight

It is sad that you feel that way, I see that you have been a poster here for a while so let me try to explain to you that you are only seeing what the VA wants you to see. You not only have the shoe on the wrong foot, but you also have the wrong shoe on the wrong foot. My BVA grant that denied my claim for well over two decades finally went to the CAVC where they remanded my claim.
Back story, I filed a claim, and it was denied, filed a NOD and it disappeared,  reopened my claim and it was denied again not service connected, not related, no evidence linking to service. My claim went to the BVA where they remanded it, the VARO refused to grant my claim and sent it back the BVA where they turned around and denied my claim not service connected, no evidence linking to military service. So, I hired a lawyer, and my claim went to the CAVC where they remanded my claim and forced the BVA to grant it direct related to my military service and multiple evidence in  C-File. What, smoke and mirrors my friend, smoke and mirrors.
How could the CAVC find evidence that both the VARO and the BVA could not find. It is because the VARO and the BVA did not want to see what was there since my original claim was already documented in my file. Yes, based on my CAVC remand the BVA granted me a 1998 effective date, do to the evidence that was always, and I mean always in my file but never adjudicated and never rated. That means for well over the two decade the VARO and the BVA ignored my evidence or completely overlooked it thinking I would just give up. No evidence , lack of evidence, no, more of incompetence, or ineptness than not providing the necessary evidence.  
We all go through what we all go through your pain is no different than any other persons. Try not to blame it on veterans it is the VA system. I also have my 1998 claim waiting for a final decision on the one that the BVA already made. Pain is pain, the days when I cannot get out of bed are just that, days I can't function right. No need to blame someone else.

Scottish_Knight 
Thanks for putting this up..great Info
Its about time Bluewater Navy Veterans get their deserved benefits....a MILE STONE TO SAY THE LEAST.
Attention ALL BLUEWATER NAVY VETERANS.GET THOSE CLAIMS GOING ...>   N.O.W.     AND AS I UNDERSTAND IT  THEY COULD GO BACK TO THE DATE THE VETERAN FIRST FILED AND WAS DENIED.

New information for (Vietnam) Navy vets.  Thought worthy of passing along.
 
Blue Water Navy - Nehmer 
The Department of Veterans Affairs (VA) announced it will readjudicate claims for Veterans who served in the offshore waters of the Republic of Vietnam during the Vietnam War.
This review is part of the Veterans Benefits Administration’s implementation of the November 5, 2020, U.S. District Court of the Northern District of California decision to readjudicate previously denied claims as applied in Nehmer vs. U.S. Department of Veterans Affairs.
Veterans who were previously denied service connection for an herbicide related presumptive condition due to lack of in-country Vietnam service will automatically have their claims readjudicated.
Readjudication means VA will review the evidence of record and provide replacement decisions in the cases of Veterans who were previously denied service connection for one or more herbicide related conditions on the basis that military service was not performed on the landmass of the Republic of Vietnam or on its inland waterways. This review will also apply to eligible survivors of deceased Vietnam era Veterans.VA is dedicated to ensuring all Veterans receive the benefits they have earned.
VA ensures that we have the proper resources in place to meet the needs of the Veteran community. Eligible survivors of deceased Veterans may also benefit from the policy and may be eligible for benefits based on the Veterans’ service.
Veterans who have a condition caused by herbicide exposure during military service can learn more about Agent Orange exposure at this website.

 

Well...... after two years of fighting the VA I am officially in the 100% club. Thank you everyone for the motivating advice and kind words along the way!

Do you receive SSDI ,and if so is it solely for the social anxiety?
SSDI awards contain an independent medical opinion.
If so did you tell them that on the TDIU form?
Has VA VocRehab ever turned you down (in documentation) that because of your SC, Voc Rehab is not feasible?
If a veteran is denied Voc Rehab  solely due to their SC, then they are unemployable because they are unrehabable.
When you reached the 70%, did the VA make any statement regarding TDIU consideration  and send you the TDIU form? OR were you employed at that time?

Do you have both of these?
1. evidence of unemployment due to service-connected conditions, employment history records for example, and
2. medical evidence that the veteran’s service-connected condition renders him or her totally disabled and unemployable, generally a doctor’s opinion letter.

Because the VA is the VA, it will most like want it's own C&P. 

Prepare for a fight?  One never knows.  It will depend on the rater.  Since you already have it as SC at 70%, if you do have 1 & 2 above as well and with a C&P, it should be a done deal. But again the VA....

I was shot in the leg in 2001.  Broken femur with a rod inside the bone, held with four screws.  The bone is 2cm shorter than the other.  A weakened and atrophied muscle.  I was given a 0% rating in 2009.  So, yes, the VA is the VA....  Although the VA finally acknowledge it last year, the EED was not given.  It's a fight.

What seems easy and correct and with common sense does not work with the VA.

Can you cut and paste the part in the rating decision to which you are referring?  Better would be the entire VA rating decision 'masking' your spouse's ID data.  We'll be better able to assist by reading the same thing you're reading.  This will also assist in comparing the rating to the rating table.

I just did a CUE last week, so I well understand a part of your frustration.

When all else fails, ring the VA...

I did...and I used the friendliest customer service voice (the one I use in my shop) I have.  The first lass was very friendly and the second was polite.  But I am worried.....

The mental health / tinnitus / hearing loss claim from February is still open.  The tinnitus and hearing loss C&P have not yet happened.  So, the VA combined the CUE claim with the earlier claim.  When I asked if that was ok as the two claims are significantly different, I was told that the VA sometimes does such.  Someone will contact me when questions arise.

So the CUE is still open, but I am concerned since it's been combined with a new claim.

No worries @Buck52.  Interesting what you wrote.

The CUE is sent.... I can only hope correctly.  The website, as earlier explained, was confusing.  I rang the VA...  never fun, especially as I cannot reach anyone at the 1000 number.  I rang the other and had a stunningly friendly woman on the phone.  We chatted on the issue I was having and she connected me to someone who partly helped.  We were disconnected before all was said and done.

Although I filled in a pdf 526EZ, it is now done automatically when one files a new claim.  I uploaded everything and his sent.  Now begins the great waiting game.
The woman was unsure at first what to actually do.  Aye, I was disagreeing with a VA decision, but this was more than a year from the date of the rating.  Her suggestion was to do a new claim and upload everything.  My gut feeling is in a few weeks time, the claim will be closed and I will need to contact the VA who will in the end tell me to mail it in.

One interesting note regarding the second woman I spoke with.  She, albeit polite and friendly, discussed the CUE with me.  At first she was hesitant, but after my explanation and before we were disconnected, she was beginning to understand.  She could, of course, not provide any guidance or opinions, but I feel from her tone, that this may prove positive.

We shall see.

You did a LOT of work on this and I commend you for that! I re read the original download many times yesterday but, I could not respond- this is a very busy time of the year for me.
I have a few suggestions.

I have started all of my CUE claims thus:

To whom it may concern: 
    
 ( or attention to the alphanumeric on the decisions being cued if it has an alpha numeric near where the date is, or near any 'Re:'
    This is a claim under auspices of  CUE, 38 USC, 5109A.
 The CUE is within your  enclosed ( date) decision and is in violation of 38 CFR 4.6: Exhibit A
“'The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “
----------------------------------------------------------------------
My point is to hit them right away with this regulation.
-----------------------------------------------------------------------------------------------------------------
I have an article here at hadit called The Power of 38 CFR 4.6.” It is not only the sole regulation I used for some of my CUES, it also covers so much, that often other legal citations do not need to be used.
38 CFR 4.6 is basic VA case law, and I think VA violates this regulation more than we know.

I seem to think this could be worded better-:
I don’t think : “failed to pyramid’ would be the best way to state that   ***-
2.  In the VA 2009 RD, the VA failed to pyramid the symptoms from the 2001 gunshot wound.  While pyramiding is to be avoid in accordance with (IAW) §4.14, the VA is mandated to treat each symptom separately.  The Veteran sustained a gunshot wound from a low velocity missile, that traveled through and through the muscle group XIII and resulted in a shattering femur bone fracture.  The broken left femur with an inserted rod is one disability and symptom and the losee of strength and atrophy to muscle group XIII is a separate disability and symptom.  Both, however, are brought on by the same injury.  To have not separated these symptoms and disabilities is in direct violation of §4.14.
***Because the VA does not look favorably at pyramiding:
“The Board notes that the July 2020 rating decision granted an increased rating to 20 percent rating for the Veteran’s right knee disability based on frequent episodes of locking, pain, and effusion.  As previously discussed, the Board finds that the RO’s assignment of an increased rating under Diagnostic Code 5258 was inappropriate because it constituted impermissible pyramiding.  The Board has restored the Veteran’s 10 percent rating under Diagnostic Code 5010-5260 and recharacterized the Veteran’s 10 percent rating under Diagnostic Code 5259 to Diagnostic Code 5010-5258, based on frequent episodes of locking, pain, and effusion, from July 24, 2020, forward, the date he was shown to have such symptoms.  As such, the Board will proceed with adjudication of a separate rating under Diagnostic Code 5258 and discuss why the Board has recharacterized the Veteran’s rating under Diagnostic Code 5259 to Diagnostic Code 5010-5258, from July 24, 2020, forward.”

https://www.va.gov/vetapp20/files12/20080814.txt

In this case 'pyramiding'  obfuscated the point the veteran was making-and caused a lowering of his rating, but the BVA restored that rating and gave other Diagnostic codes that were more appropriate.
I hope others chime in on this point.
I don’t think you need to refer to “pyramiding" at all.
I will try to find anything that can help you more- but you did a Very Good job here !!!!
Also you do what I have always done with my many personal VA claims- I would put them away for a few days-(which is often hard to do- when you know you have a solid issue and probative evidence) and then go over them again.
Sometimes they seemed OK and I was ready to submit them, but sometimes I did edit them because something needed to be clarified or edited.
This is funny now- but not at the time it happened.
My husband had two claims pending when he died, one under 1151 and one for a higher rating of his PTSD.
In those days I had to use a Brothers typewriter -we had a PC but printers were not available yet.
He dictated the claims to me. When I got done typing the Higher rating PTSD  claim, I said Oh "S--T", because I had typed "disbaled instead of disabled'.
I was going to use white out and type in the proper spelling but my husband said "No, leave it in ----" the VA HAS disbaled me!"
He had a very difficult time trying to become  a VA employee-and was still upset over a nepotism issue at the VA.I told the director to get him a job there or get served with an EEOC complaint.He got a VA position within hours.The personnel director was fired. He was also very upset at the lack of PTSD treatment and saw the employee shrink instead of the real PTSD shrink at the VAMC. The employee psychologist was a lovely man but really had no idea of what PTSD was all about, and worse yet he refused to document anything- because he did not trust the VA snooping about any employee having therapy sessions with him.
My husband's  1151 was primarily for better PTSD treatment, which he did get 2 years later ,after a big battle,  but the rest of it was critical to his 1151 claim and also to the FTCA wrongful death award.
I mailed the PTSD higher rating request in just as he said to do. Unfortunately , as I became  the substitute claimant,after he died , and had to continue those claims with evidence, he won those claims,
but he  never knew it.
 
 
 
 

 

https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/13/
Broncovet, GBA, sixthsense, all others 
You will need to read the whole thread, maybe more then once, I have read it many many times-
This vet is a Military retiree, who got a "0" SC for a GSW. in 2009 and subsequently has been awarded 40 % for it.
We believe there is at least one CUE in the 2009 decision.
If he can garner a 50% overall SC rating ( he had 20% for 2 other issues) back to a CUE on the 2009 decision, he will be eligible for more retro CRDP, perhaps back to 2013 ( or when the CRDP regs became law.)
The pdf is still here somewhere on the 2009 decision-in this thread I hope-  if not  have it in pdf but cloud is affecting my internet-----cant attach
The veteran is doing all he can to understand  VAOLA and is getting quite up to speed very fast-that is Very commendable because this is all overwhelming not only to him but to me as well...takes a lot of reading and thinking- but that is how claims succeed.
The 10% SC vet retiree I mentioned in the thread is my neighbor and has griped to me many times (since 1998) that the ten is too low because he said he gets SSDI solely for the 10%. He has never shown me his SSDI award and wanted me to prepare a TDIU claim for him- no way Jose----
He has a vet rep on his POA , kept forgetting to show me his SSDI award,and his decision  thought I could perform a miracle without it, but I have no supernatural power
and I don't hold hands.  
My point on that is this is a veteran WILLING to do the legwork-some vets, as many of you have learned, won't do what they need to do and we cant do it for them.
 
 
 

We have it sorted Berta!  Thank you very much.  I've begun the write up for the DAV and hope to have it out no later than Monday.  There are additional points we've raised here along with things I've researched I plan to add.

I cannot thank you enough for sticking this out with me.  Truly appreciated!

I asked others here to give some input:
https://community.hadit.com/topic/83264-we-need-more-input-here/#comment-502681
p

I agree- that is the correct form- and this means the DAV certainly has a basis for a CUE claim.
violation of 38 CFR 4.6:
"§ 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."
https://www.law.cornell.edu/cfr/text/38/4.6
 
You had 'elements of probative value  listed on the 21-4142, that were not 'thoroughly and conscientiously studied by each member of the rating board,' because, the VA  failed to obtain all of the specific records as noted on the 21-4142', and the "0" SC rating for GSW/residuals ,was therefore to your detriment.
The diagnostic code they used is in error as well, but DAV could elaborate on that or jjust say in the CUE that the DC the VA used is inaccurate as it did not contemplate all of the evidence of record to include records from the specific hospital in Germany or from Meddac.
I am not sure what the proper DC code should have been but in any event I have been very successful with 38 CFR 4.6 regarding CUE and I think maybe that is the only legal error the DAV would need to cite.
It is my favorite regulation:
'Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.'
 
 
 
 

I do not see on the pdf of the 2009 decision, any mention of the Civilian hospital or MEDDAC.
They mention your STRs but I do not now i those records were even in your STRs- if so- (they should have been) and iff VA ignored them ,that is aviolation of 38 CFR  4.6 (CUE).
They do state as evidence the exam in Germany:
"unremarkable, but large  surgical scar extending from the lateral left hip area to the lateral thigh.Do you have a copy of your STRS and are the civilian hospital records in those STRs?
Did you , on your original 21-526, tell the VA this:
 "This occurred on a US military installation, however I was taken to a civilian hospital for the surgery and was later transferred to a MEDDAC.  "
I am going to ask for input here from others----
 
 
 

We were on line at the same time- I just read your recent post and 
said YIPPEE!!!!!!!!!
Because since the DAV had you sign an authorization form for those records- and then if the VA failed to obtain them, that is a big CUE!!!!!!!violations of 38 CFR 4.6 .
I had a simiar situation with my husband's SSDI records- the VA said SSA refused o release them ( that was a lie) the VA never sent them his signed authorization for and it was not in hi med recs, but in his C file- Hopefully the DAV has a copy of what they sent.!!!!!!!!!
I reversed that situation not with a CUE, as far s I recall,  but by raising Hell with my VARO.

I replied to that yesterday .
I suggested that you ask them (DAV)to consider a CUE claim,on the 2009 decision  but as I mentioned a lot will depend on the rating sheet. That s where the legal error occurred, if one occurred and they also need to consider 38 CFR 4.6 
They can read the posts here as a quest if they have questions about a potential CUE in your case.
Just give them the link.
https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/10/
They should be well versed in CUE.

First,
What Cannot be CUE?
The Code of Federal Regulations provides that the following situations do not constitute CUE:

(d)


(1) Changed diagnosis. A new medical diagnosis that ‘corrects’ an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

38 CFR 20.1403 (d)(3) above is most interesting. As long as the VA relied on some negative evidence that was in the record, even the most dubious and slimmest of evidence, a veteran cannot argue that the analysis was flawed. It doesn’t matter if the evidence on the veteran’s side amounted to a mountain and the negative evidence on the other side amounted to a mole hill, so long as the VA relied on the negative evidence to reach its finding of fact adverse to the veteran, it cannot be challenged as CUE. The CAVC put it this way: “when there is evidence that is both pro and con on the issue it is impossible for the appellant to succeed in showing that ‘the result would have been manifestly different.’” Simmons v. West, 13 Vet.App. 501 (2000). If you find yourself in this situation, the best route is to reopen the claim with new and material evidence that specifically rebuts the VA’s previous rationale for denying the claim.

What IS CUE?
Analyzing a BVA Decision for the following types of substantive errors:

BVA findings of material fact that are "clearly erroneous":

Whether constitutional provisions, VA statutes, regulations, or M21-1 provisions were violated or misapplied

Failure to comply with a BVA or CAVC remand order

Failure to reopen a claim supported by new and material evidence

Failure to consider a claim or legal theory reasonably raised by the record

Failure of BVA to State its Reasons or Bases for its Findings of Fact and Conclusions of Law

BVA Findings on Medical or Vocational Issues of Fact Unsupported by Competent Evidence in the Record

The BVA's Failure to Explain Why It Rejected Positive Evidence Supporting the Claim


Some Examples of CUE
Failure to Fully & Sympathetically Develop Claim

Even though the failure of the VA to fulfill its duty to assist a veteran is not grounds for a CUE claim, the courts have allowed CUE claims based on the VA’s failure to “fully and sympathetically develop a veteran’s claim to its optimum.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This means that the VA must “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” Moody 360 F.3d at 1310. Therefore, if there was evidence when the previous decision was made that the veteran was eligible for compensation for a claim not raised by the veteran, and the VA did not adjudicate that claim, this constitutes CUE.

For example, if a veteran applies for benefits for back problems relating to an incident while serving in Vietnam and subsequent VA medical exams reveal the veteran has Hodgkin’s disease, the VA has a duty to adjudicate a claim for Hodgkin’s disease on the veteran’s behalf (Hodgkin’s disease is a presumptive service-connected condition for veterans who served in Vietnam). Failure of the VA to adjudicate a claim for Hodgkin’s disease would be CUE and the effective date for the Hodgkin’s claim will date back to the date of the back injury claim.

38 CFR 3.156© Using Newly Added Service Records

You can use 38 CFR 3.156© to get an earlier effective date “if the 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.” So, if after reviewing your C-file you find official service records that were added to your file after the denial, and these documents would have manifestly changed the decision, you can argue for CUE based on 38 CFR 3.156©. An example would be a previous denied claim for PTSD because of lack of a stressor in service. If an official service document is added to your file after this denial that clearly shows the veteran suffered a stressor in service, the veteran can use 38 CFR 3.156© to get an earlier effective date equal to the date he originally filed the claim for PTSD (assuming you have the proper nexus and medical opinion).

Thanks to Katrina Eagle, and John Forristal

Cfile...VAspeak for "claims file".  
38 CFR 3.156 is reopening due to new and material (relevant) evidence:
https://www.law.cornell.edu/cfr/text/38/3.156

The rating sheet should show, Diagnostic codes between 5310-5312 for GSW foot or leg.
DC 5313 to 5318 are for pelvic girdel and/or thigh- 
The large scar involves the left hip to the left lateral thigh so I assume DC 5313- 5318 would be the code (s) they should have used.
It will take me time to see what else I can find- there are plenty of GSW decisions at the BVA in 1992,
and I also what to see how the VA considered the Muscle Group impairment  involvement of the GSW if that is on the rating sheet.
But a lot will depend on the award decision and that rating sheet,as well.
The award letter evidence and rating sheet will give clues on what the VA did right or what they did wrong in the older non compensable rating.
Muscle Group Impairment and VA's inaccurate assessments of it caused one of the BEST CUE awards I ever saw. Myler V Derwinski.
I have a friend 40% GSW ( he had 2 GSWs on his DD 214) and he claimed for years he did not have PTSD but there was no doubt in my mind that he had PTSD.
A GSW is a stressor
If you feel this incident has caused you any mental health issues by all means file for SC PTSD.
Finally my friend went to see his POA rep and the rep ( I knew him too and he had PTSD) convinced him to file that claim and he was awarded SC for PTSD.
Vets with PTSD don't want to have it and sometimes they have no idea how their personality and behavior is affected by it.
My husband ( Vietnam 65-66) went to the VA to apply for a business loan. He had no plan, no credit, and had just left a fabulous job because he thought he had gone crazy in Vietnam-and his other wife had divorced him due to his anger. The VA had to deny the loan app immediately because there was no plan of action and he didnt now what kind of business he could start.
He asked to see the loan officer in person and an oriental man walked into the room and he had a flashback and tried to choke the enemy.As he waited to be arrested, another Vietnam vet came in the room and they started to talk about Vietnam. My husband revealed a horrific volunteer job he and a few Marines had done in Vietnam. The other said said I have to confess something to you- I am the director of this VA and also a psychologist and I was at the scene you described as it affected many Marines right away-it was horrible and know one would know those details you gave unless they were there.
The director Immediately got a VA rep to file the PTSD claim, and gave the rep his  Buddy Statement as well to attach to the claim.
A few months later the VA award letter came, 30% SC PTSD ( it went up to 100% after he died)
My husband asked the director what PTSD was and the director said where do you live- and told him they had a vet center not far from where he lived and that is where he could out what PTSD is.
I was a VA Vet center volunteer and that is where I met him.
My husband had never shared the flashbacks with anyone before-and had an apartment in DC after his discharge,that he shared with his childhood best friend, a Vietnam combat vet himself, and neither one would even discuss Vietnam.
I saw this in my family as well- my uncle told me Vietnam was a forbidden subject.
His son had been shot in Vietnam, and needed two years of VA hospitalization for it and his daughter in law's brother had been killed there.
Any GSW is a stressor. But that does not mean it always causes PTSD.
I think my reply here is for maybe the hundreds of guests out there we get here every day,-who might have service connectable  PTSD and do not want it. But they should be compensated for it.
This is kind of funny now- not when it happened.
A VA doctor ,after I threatened her,that I would call my congressman, that a miracle had occurred ad they had 
'fixed'their "broken CT scan" in about 10 minutes, and she did not understand what a neuro had told her the scan revealed- that he had a major stroke and other areas of brain damage. She had diagnosed him with an inner ear problem.She came into his room and said "Rod we are preparing you for a transfer for Brain surgery at the Syracuse VA." My husband, who was quite alarmed for a few seconds said Hey thats OK -maybe the surgery could take away Vietnam. I said honey, this doctor is an idiot- and I spoke to the Neuro myself right away.I said ,after he read the CT results to me 'this isn't a brain surgery problem' and he said 'No it isn't -who told you that?'And I said the VA idiot doctor who you read the scan to.
sorry for the rant-
How can a GSW that certainly disabled this vet here, be non -compensable ?????
 
 
 
 
 
 
 
 
 
 
 

https://hadit.com/va-claims-glossary-definitions-abbreviations-terms/
It certainly pays to go over this list to understand VA -speak.

This regulation was presently incorrectly here some time ago.
It clearly reflects the change to M21-1MR and if any agent or vet rep ,lawyer, VSO says you cannot file CUE on a recent decision- whether award or denial, whip this out and show it to them:
https://www.law.cornell.edu/uscode/text/38/5109A
38 U.S. Code § 5109A.Revision of decisions on grounds of clear and unmistakable error
U.S. Code Notes prev | next "(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. (b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. (c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant. (d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made. (e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim. (Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)"   The M21-1MR change is available here under a search and you can whip a copy of that out as well.   I bet only a small % of vet reps, agents, etc even now about this change. The key addition is: :(d) "A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made."  
   

to add  there are only 10 cases at the BVA that are appeals involving CRDP retro-I used CUE as well in the search feature.
One was a Motion under CUE involving retro due to a  CRDP veteran but the VA denied the Motion as it was not propery prepared.
There was however, a successful CUE claim:
https://www.va.gov/vetapp20/files7/a20012464.txt  ------granted CUE
"The withholding of $2,146.21 due to concurrent receipt of military retired pay (MRP) and VA disability compensation for October and December 2017 was clearly and unmistakably erroneous; the appeal is granted."
and also an audit request by the BVA:
https://www.va.gov/vetapp11/files1/1104298.txt
remand for full VA CRDP audit.
When you get your decision, it will help if you can scan and attach it here (please cover your C file # and name, address, prior to scanning it)
We will need to see the Evidence list as well, and then we will need to see a redacted scan of this past rating decision:
"My VA exam was in 2009 and at that time the length difference in my legs was disclosed to me for the first time and as xrays were obtained, the screws were discovered to be broken.  The VA Rating Decision gave me 0%. "
There could be a 38 CFR 3.156 issue or a CUE issue in that past decision that we can help with
to help you garner the proper EED ( Earliest Effective Date) for the CRDP.
The winning CUE provides us with a great template.
8 BVA decision regarding CRDP and retro were denied.
One was a widow's claim.
I read them all and they all seemed to have been properly denied.
But NOTHING is impossible - yet I am only speculating on potential CUE and/or 3.156 and did not want to forget these decisions above, if in fact, your retro is incorrect.