JKWilliamsSr

In my opinion the advice 38 CFR 3.156(c) is the best way to go. It is the same route I am actually taking when it comes to getting the proper effective date. The most important thing is to get service connection. I had to deal with the same thing you are dealing with. I will give your brief breakdown on what I went (am) going through. I have a number of claims but will only mention the claim that resembles yours. 1. I filed a foot claim in 2002. Was denied because per the VA I showed no complaints in service. 2. Reapplied in 2009 was denied again for not submitting new and material evidence. They stuck with the no complaints in service. 3. 2018 I get a copy of my C-File and in my service records as clear as day are foot complaints for plantar fasciitis. There is also a proof via X-rays of having pes planus (flat feet) entrance physical shows normal feet. Exit physical shows abnormal (flat feet) 4. I filed again for my feet but this time I submitted the service records they claimed were not there. Finally got a C&P exam and was lowballed (10%). Got tired of it and hired an attorney. I am currently 50% for my feet. Currently working on the effective date. My advice is this. File a supplemental claim and when you send in the claim send copies of the medical records they claim are not there. Otherwise it is likely whoever gets your claim will see you did not submit new evidence and rubber stamp the denial. In my supplemental claim I cited both 38 CFR 3.156(a) and 38 CFR 3.156(c) for the reasons my claim should be reopened. In theory you should not have to do that but I don't trust the VA to know how to do their job. Keep in mind supplemental claims cannot be done via E-Benefits. You will need to fill out the paperwork and either mail it in or fax it. I personally faxed mine in.

From reading this I think the key here is the actual ruling. I think where people get confused is they may forget this is still a judicial proceeding and standard procedures will apply. In this case the key word is "dismissed with prejudice", any case dismissed with prejudice cannot be refiled. Now in some of the rulings I have seen where they found cause the dismiss the CUE they would do so "without prejudice" which allows you to refile.

UPDATE: My appeal is complete (I believe). I logged into the VA website and saw that that the BVA granted me service connection for Diabetes, Sleep Apnea, Bursitis, Bursitis (yes twice), and degenerative arthritis. When I would periodically check to BVA it always had those things listed. Made no sense because my appeal has no mention of bursitis. If fact I do not have an actual diagnosis for bursitis. It is not listed in my IME or IMO. I have never even filed a claim for bursitis. Had to look it up because I did not know what it was. My guess they are just random identifiers that someone put in when they added my claim in the site. In my experience the "issues" part of the VA website never seemed to actually match what I was claiming. I am attaching a snipit of what my attorney submitted on the form.

You probably going to have to appeal to the BVA and provide the records that show when the symptoms began. It should be a straight forward appeal if you ask me. The problem is many of us deal with the VA quickly rubber stamping a decision because I believe claim completion is more important than claim accuracy. Your letter will probably have the rater citing 38 CFR 3.400 as how they came up with the effective date. I personally think it is being misused even though the wording is clear. Raters are ignoring the first part of the first sentence which I believe is the most important. It states and I quote "Unless otherwise provided" That wording is key because in my opinion that means the rater is to first make sure nothing else is required to be used for an effective before relying on 38 CFR 3.400. For example 38 CFR 3.156(c) is clear on the effective day when new service records are available that were previously not part of the claim. This situation would fall under "Unless otherwise provided"

I appreciate your comments and I have to admit that your first response to me in this thread talked me off the ledge. I was pretty pissed off at my attorney. With that said I decided to actually think about it. He may have made a mistake and I have accepted that it was not intentional. I may be a little annoyed but all the good he has done for me outweighs any mistakes so far.

I asked him about it and he claimed he did so. However this was a year ago when he supposedly submitted it but did not have any information I felt was relevant because he did not ask for it. However a few weeks ago when I inquired again he asked for the information. I sent it to him with a personal statement and he told me he file it again. This time I guess it stuck because a judge is viewing my appeal now.

My understanding is that once the BVA grants service connection it will go back to the RO for percentages and effective date. Since it is the RO that is making the percentage determination and effective date that can be appealed to the BVA.

My appeal has now being reviewed by a judged. My attorney filed a motion to advance on the docket due to financial hardship and it appears it got approved. So now it is a simple wait game. I personally think my appeal is a slam dunk. I have both an IME and IMO as well as a plethora of supporting evidence. While I am certain (nothing is ever 100%) I will be granted service connection I wonder if the VA will try to send me to more exams. I have a feeling my attorney is not going to go for that because for some of my claims the VA has already had me go to exams twice for the same issue. The exams were bad and I am talking keystone cop stupidity on the reasons for my denials. Back Claims: I have had 3 exams from the VA for my back. The first one was a laughable joke. It lasted less than 10 minutes. The examiner said less like because I am overweight. Ignoring all of the evidence that showed back complaints while I was not overweight. What makes the argument dumb is part is sleep apnea was on this claim (part of the appeal as well) and for sleep apnea I was using obesity as an intermediate step due to my not being able to exercise due to my back (Not SC) as well as other disabilities that are actually service connected. The other two C&P exams were done by LHI and QTC. I can't see them. They used them to confirm the denials but never the reasons why. In all my back decision they never mention the evidence I submitted. DIabetes: I had 2 exams this condition. In the first denial they actually did a complete explanation on the evidence and why it was denied. It was the only condition they did this. It was a complete crap decision. The denial was because their claim was Dr. Ellis based his decision off of my history alone. I guess they missed the part where he examined me. For my second exam It was per the Nurse Practitioner who stated it was less likely because there are no notes in my file stated that I was put on limited duty/profile while on active duty. I only know this because by now I hired an attorney who had access to my file and got me an IMO. The doctor that wrote the IMO tore apart the examiner and even stated that because she was a nurse practitioner she was not qualified to make determinations on diabetes. Hip Arthritis: I had 2 exams for this condition. I have no idea what the exam said as it was done by QTC. In the denial the rater states the examiner was unable to confirm a chronic diagnosis. Nevermind the fact that I submitted current medical records along with an X-Ray report confirming the diagnosis. The rater goes on to say that I claim my hip issues were secondary to my feet and at the time I was not service connected for my feet. However, my statement in support of my claim states I believe my issues were caused by my feet, feet and ankle issues. I also made sure to point out I am not a medical professional and do not make a diagnosis. I am not service connected for my feet and ankles but at the time of the decision I was already service connected for both knees. On the second exam the examiner stated my hip issues were less likely to be service connected because my conditions do not preclude me from all forms of exercise. He actually used paraplegics as an example saying paraplegics can exercise and maintain appropriate BMI. Now the second exam was not an actual exam. It was a records review. So I was denied based on their examiners history but the same standard was not applied to mine for my diabetes even though I had a physical exam as well. Needless to say the doctor that did my IMO tore this rationale apart. Knees: As I sit here and ponder I can't recall if I have ever had any additional knee exams except for the one in 2009 that gave me my initial 10% rating. I can this with absolute certainty though. I have never had a any VA examiner use a goniometer for my knees. It has been used (once) by QTC for a back exam but no examiner VA or otherwise with exception of my own examiner for my IME. I have went over every decision letter and the VA does not list a single measurement in the decision letters for my increase. They state in there a certain CFR was followed but it never shows what the measurement if any was. It would be a complete lie because there are no measurements but they don't even attempt to hid the fact there are none. Sleep Apnea and Ankles: Submitted new and material evidence. The VA acknowledged the new and material evidence and stated my claim is reconsidered. Deniedd me without even scheduling a C&P exam and confirmed the previous decision. No rational was submitted. They only state the evidence does not support a change in their prior decision. I have submitted a lot evidence for my claims. I have personal statements, Spouse statements, civilian medical records, service medical records, IME and and IMO. In all of my previous decisions the VA while they list all the evidence I submitted they do not address the evidence in most of the decisions. The only decision they say anything in is the diabetes decision.

Something else I forgot to point out. In my most recent claims I had a IME from The Ellis Clinic. The VA has yet to give a reason and bases for why they did not accept his diagnosis. When I hired an attorney I also has an IMO completed. So I have not only SMR's, current medical records for treatments. I also have an IME and an IMO. On top of that I have statements from my current wife concerning symptomology and my ex-wife also submitted statement as we were married when I filed my 2002 claim. We co-parented a son (now 20) so we are around each other alot for his event and get along. She is a nurse with a BSN. Of course her statements were ignored as well.

You are correct and I am doing it exactly in the order you have listed. As it turns out I will have two appeals for effective dates for my feet and back. My foot claim is complete and I am rated at 50%. However my back is still under appeal at the BVA and I waiting for that to be completed. Quick breakdown: Feet: Denied initially in 2002 and again in 2009 due to the VA claim of it not being in my service records. Get my C-File in 2018 and SMR's show the foot complaints with X-Ray proof of flat feet and also a diagnosis of plantar fasciitis. Send those records and finally get a C&P but get lowballed with 10%. I hire an attorney and appeal that decision and get 50%. Back: Denied initially in 1996 due to the VA stating I only had complaints from 86-89 and those complaints do not have diagnosis of a chronic disability. Denied in 2002 and 2009 because I did not submit new and material evidence. When I get my C-File I find the SMR's with complaints from 90-96 and diagnosis of Lumbar Strain and Mid Thoracic Back Strain. Submitted those records and finally get an exam but am denied again. That appeal is pending. My entire argument on the effective date on both feet and back will be 38 CFR 3.156(c). It appears my service records from 90-96 were never part of the record for any claim. If we are being honest though it would be safe to assume they were just ignored. I am not sure if anyone knows about a decision where the VA has tried to argue that if they grant service connection and base it off of 38 CFR 3.156(a) then 38 CFR 3.156(c) would not apply. That was completely shot down in 2016 by a CAVC decision. Veterans Law Office of Amy B. Kretkowski — 38 C.F.R. § 3.156(c)(1) REQUIRES RECONSIDERATION EVEN IF VA HAS ALREADY GRANTED SERVICE CONNECTION (abkveteranslaw.com)

I agree and I am going to wait for my appeal to get finished at the BVA. I found some more relevant information when going over the original denial letters and they will pretty much make the 38 CFR 3.156(c) filing for an earlier effective date that much easier. My original claim was in 1996 for Back, Finger and Knee issues. My back was denied for not being a "well grounded" claim. That is what the did before the VCAA came into play in 2000. In the 1996 denial letter the VA cites my back complaints from the years 1986-1989. This is where the issues come in. I served from 1986-1996 and it appears either some of my records were not available or completely missed. I was seen a couple times for back issues from 86-89 but the majority of my back issues were from 90-96 and it well documented in my medical records. Based on this info with SMR's that were clearly created but either not available or used in the decision process I could be looking at an effective date of 1996 for my back. EDIT: When filed my supplemental claim for my feet and back I submitted a statement in support of claim as to why my my claim should be reopened. I stated the evidence I submitted and I also cited both 38 CFR 3.156(a) and 38 CFR 3.156(c) which the VA is required to address. However, in the decision letter and the HLR decision they make no mention of either.

I have a current diagnosis as well as XRay evidence that shows the disability. Currently have an appeal pending before the BVA. I think I screwed up in my original post. I should stated the CUE was for an earlier effective date. I am pretty sure I have a slam dunk for service connection at the BVA. I have not only all my records sent I also have an IME from one doctor and an IMO from another.

That is the gist of it. I was never given a C&P exam. I was denied outright because whoever reviewed my file said I did not have diagnosis of a chronic condition. However, I was seen 9 times on active duty for back issues. What is written in my SMR's is either Back Strain or Lumbar Strain as the diagnosis.

In 2002 my back claim was denied by the VA. The reason for the denial was that even though I was seen for back complaints (9 times) There is no diagnosis of a chronic disability. Here is why I think this could very well be a CUE Claim. The determination of no diagnosis of a chronic disability was may by someone unqualified (VARO or Reviewer) to make that determination. There is no documentation from a single medical professional in relation to this claim concerning my medical history. I have seen some case law on this such as Sokowski v. Derwinski that states "Remand was required of the veteran’s claim for service connection for actinic keratoses given that medical evidence contrary to the veteran’s medical evidence was lacking in the record and the BVA merely relied on its own unsubstantiated medical conclusions in denying the claim." or Moore v. Derwinski that says "BVA may not reject medical evidence on the basis of its own unsubstantiated medical conclusions." There actually is a good bit of case law on unsubstantiated medical opinions by the VA and I wondered is my situation could apply.

Going back to the original post I can see what the VA is doing. They are using 38 CFR 3.400 to pick and choose what laws they are to apply to decisions based on what I can only deduce is rater preference. They are clearly misinterpreting the law. The first sentence is clear... "unless as otherwise provided," is the key wording. There are myriad of laws that govern the effective date and the "unless as otherwise provided statement clearly means if there isn't a law that will determine the effective date this particular CFR will apply. I will use my situation as an example. It is clear that 38 CFR 3.156(C) applies when it comes to an effective date. That would qualify under the "unless as otherwise provided" scenario. However, in my decision letter the only laws cited were 38 CFR 3.400, 3.155, 3.114, 3.2500, 3.2501 and 3.105. So it is clear they did not consider 38 CFR 3.156. I put in a request for my C-File last week and I am going to wait until I get that before I proceed. For my HLR my attorney requested a phone call and I need to see if he request reconsideration based on 38 CFR 3.156(C)(1) which would have then have then made 38 CFR 3.156(C)(4) relevant. He told me that during the call it appeared the rater was agreeing with him. He did seem a bit surprised at the decision. It was made the very same day of the call. EDIT: It does not matter if my attorney raised the 38 CFR 3.156(C) claim or not. I had already did so. When I filed my supplemental claim I submitted a statement in support of my claim to reopen. In this statement I cited 38 CFR 3.156(a) and 38 CFR 3.156(c) as reasons reasons to reopen and that I was submitting SMR's that supported the claim. The reason I thought I had to go the CUE route is because I had assumed the VA had addressed this in their decisions. It was my own fault for not even paying attention to the cited laws. In any case 38 CFR 3.156 was required to be addressed in any decision because I raised the claim.

I have yet to file an appeal to the BVA for this. I am now 50% for my feet so this HLR was for the effective date. This is where it gets weird. My attorney said he reveiwed my file and did not see a CUE for the effective date. So in my mind I am questioning if my attorney knows what he is doing. The CUE is clear. The VA denied my claim in 2002 saying my service records showed no complaints of foot disabilities. Well I have my C-File and that is a complete lie. I actually used my SMR's to reopen the claim in 2019 by sending the foot complaints they ignored. These are records the VA had in their possession when I filed my 2002 claim and I can prove it because there is a received stamp in my C-File when they got them. On top of that someone put a note they reviewed my medical records and actually initialed it.

I think it is a double edge sword. With that said if a BVA decision grants service connection a C&P exam would only be necessary if they did not have the information already in the record to grant an actual rating. For example you were granted service connection for a back claim but there are no ROM numbers in the file. In my opinion if those numbers are in the file than a C&P exam is not warranted and it could be argued that they are developing evidence against the claim which is a violation of law (Hart v. Mansfield, 21 Vet. App. 505, 508) You can't completely trust the decisions that are listed on the knowva website. What they do is put their own summary of a decision in their own words. I will use Hart v. Mansfield as an example. Here is a link to the VA website and their interpretation. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015428/Hart-v.-Mansfield,-Nov-19,-2007,-21-Vet.App.-505 The actual decision of Hart v. Mansfield has some info omitted from the knowva website http://www.uscourts.cavc.gov/documents/Hart_05-2424.pdf In the decision it states "VA may not pursue such development if the purpose is to obtain evidence against the claim." Citing Mariano v. Principi. The decision also states: "see also 38 C.F.R. § 3.304(c) (2007) (development of evidence should not be undertaken when evidence present is sufficient for service connection determination)

In my case my attorney filed a 20-0996 and clearly put CUE claim. The VA accepted it but did not adjudicate as a CUE claim. They did not even address the CUE. The basically stated that the effective date is correct based on what the law is today. I think it was merely a way for the VA to avoid giving a large retro. Regardless of what todays law states. Any decision has to be based on the law at the time the decision was made. A CUE claim for effective dates will have to be based on the law at the time. What the VA is doing here it seems it to try to find a way to ignore CUE claims for EED's all together.

I am going to file a CUE based on the very thing that is going on here. I finally got 50% for Pes Planus with Plantar Fasciitis. (I know I said this before...) The VA denied me in 2002 and 2009 stating that my service records have no record of my foot conditions. My denial was because I did not have new and material so confirmed the 2002 decision. In 2018 after getting my C-File I had the VA reopen my foot claim using the SMR's they sent me. The entire time they had my records and was denying me. There is a stamp in my C-File showing the Houston VA received my records and someone initialed they reviewed my records. This was right after I filed my 2002 claims. So IMO that is a clear CUE. So after getting lowballed with 10% for my feet, I hired an attorney. Got me 50% on a supplemental claim that had a 2019 effective date. We sent another supplemental claim about the effective date and the VARO stated the date was correct no errors was found. So I am going to have to go to the BVA.

This info comes in handy and I will definitely file both forms when I file for CUE. I will break down my issues and try to keep them really brief. I will only list the disabilities I find relevant to what I believe is a cue. In 2018 I got a copy of my C-file and that is how I found the myriad of VA errors. I separated 1996 in on the claim form I put back, knee, finger and sinus conditions in my claims. I am baffled as to why I did not make a foot claim. My entrance physical had normal feet and my exit physical had Pes Planus which was confirmed by X-Rays. So I will just go with ignorance. I got service connection for Knees, finger and sinus at 0%. My back was denied because while the VA concedes I was seen numerous times for back issues there was no diagnosis of a chronic condition. Odd because my SMR's have a diagnosis of Lumbar strain in there twice. (Had to edit from lumbosacral to lumbar) In 2002 I filed claims for knees, back and foot conditions. My back was denied because I did not provide new and material evidence. The VA required treatment since service for foot issues. I did not have any. I could not afford going to any doctor let alone a foot doctor. I did not have medical insurance. I would later learn.....like 2009 later that I could go to the VA and be treated for anything and my copay would have been based on my income. If only I knew. The rating decision for my foot conditions state that service medical records show no findings of claimed disability. In 2009 I filed again for my knee, back and foot disabilities. They were both denied because per the VA I did not submit new and material evidence. For my foot they continue the statement that the condition was not caused by service. For the back they now say there is not record of treatment in service for a back condition. This is contradictory to the 1996 decision. I filed a NOD to the 2009 decision and the Statement of Case says that: For my both my back and foot claims i failed to show for a 2002 appointment. This is not true. I did however miss the appointment for my knees. What makes that moot is in the 2009 decision I received an increase both knees and that is the appointment I missed in 2002. The VA never scheduled back and foot exams and that is documented in the C-File. In 2019 I got the VA to reopen my foot claim by sending them copies of the SMR's that were in my C-File. They lowballed me and gave me 10%. I also got them to reopen my back claim by submitted and IME but they still denied me. No rationale explaining why. That is one of the claims currently at the BVA. I am finally at 50% for my feet. Going to file for a EED. Waiting for my back claim to be finished at the BVA and hope to file the both at the same time. I think I have a legit CUE for my feet. Not so sure about the back since the issues is the VA claims there is no diagnosis. Not sure how that will fly.

If I am going to fathom a guess I am going to say it was an oversight on his part. Something that while annoying I will not push to cause him any issues because he did get me to 80% so far. I finally got 50% for Pes Planus with Plantar Fasciitis. That alone is a huge win for me because the VA has been denying me since 2002 saying it was not in my records. I think I had 4 denials for that alone. The sad part is that when I finally got them to reopen it again it was based on medical records they had in their possession since 2002. I just submitted to them what they had. Then they lowballed me and only gave me 10% and that was when I was fed up and hired an attorney. My feet were not the only issue. The VA has been completely inept in my claims but that is not a surprise to anyone. My attorney is paid on a contingency getting 20% on back pay. So far the only money he has received was his portion of the back pay that got me from 50% to 80% and it was worth every cent. So he will only get a percentage from my appeal backpay as well. My original post was truly out of frustration but I still think it was important. The lesson learned is no matter what your attorney says you should still follow up often to get a status. I did do a request for a copy of my C-File. I did that last week because I plan on filing an appeal of my the effective date for my feet.

I have left a facebook veteran page because of this very reason. In all fairness it is a pretty decent page but there are a couple moderators that are know it all's and tend to abuse their power when you don't agree with them or call them out. I felt it was not worth the energy to deal with all that stupidity.

@broncovet Either you are good luck or bad luck....depends on how you look at it....lol In any case after reading and replying to your message I decided to send one more letter to my attorney. Guess what happens...he replies. So from now on when I need an answer I am posting here and you will need to reply so I can get my info...ROFL. In any case he told me that he had not heard anything about my AOD request. He then asked me to forward the relevant evidence I have and the will escalate it. Not sure what his initial request was but he as I mentioned before he did not have the evidence when he made the request. Not sure what the issue is and while frustrated I like my attorney. I just feel some things should have been done sooner. Maybe I should have emailed him daily until I got an answer. Who knows?

You are absolutely correct and that is the reason why I did not include his name because if I am in error it would not be fair to throw him under the bus like that. I could be completely full of it but to me some things just do not add up for me. A lot of it may be venting because truth be told I am frustrated because I can't get any answers from him. If the motion to advance was denied my understanding is there would be documentation of it. So I asked for the status if he had heard anything back and have not received a reply. I had to call the VA myself just to get my docket number because I could not even get that from him. In just about any court system except the VA I would be able to go the clerk and request documents related to my case. When it comes to the VA I have to get a copy of my C-File just to see them. Which we all know could take forever. Here is what has me concerned the most. My attorney stated he made the request to Advance on the Docket and yet I had not sent him any of the evidence to support it. My appeal is Direct Review (evidence submission) without a hearing. While I was researching I noticed many of the more recent appeals have docket numbers well that are after mine. I know that does not really mean anything because there are too many variables that come into play which is why I am questioning things.

I guess you can call this a public service announcement. I think it is important that everyone understand what is going with their claims and appeals. Ultimately you are the responsible party for your claim and it is imperative you make sure all is in order. Something I did not do. For me it is clear. Trust but verify. I tell this story to point out the importance of making sure everything is done right with your claim. I have an appeal pending at the BVA and have an attorney representing me. I would like to say he is a good attorney (he got me from 50% to 80% from a supplemental) and what happened is an oversight. However, I remember someone saying once that the longer the appeal sits at the BVA the more money the attorney will make If granted my appeal will easily put me at 100% with effective date of Sept 2019 which as of today would get me backpay of $39k (currently am at 80%). That would net my attorney $7800 in back pay. An additional $305 can be added to that for each month I remain on the docket. I have severe financial hardship that includes a bankruptcy and Tax issues. You know the saying. Bad things can happen to good people and the past few years have been pretty rough and I trusted my attorney to help me. I filed for Chapter 13 Bankruptcy last year and at the time I inquired to my attorney about requesting advancement to my pending supplement claim. He told me I could request advancement and to call the VA to make the request. I honestly thought that odd and that he should do it but went ahead and did so. The VA told me I needed to send in proof of hardship and I did so. I don’t think it mattered because I never received a response from the VA (Supplemental Claim) about this. I asked my attorney if he would look into this and also inquired if the hardship request could be made for the pending appeal as well. His reply was simply it was done. I should have questioned it then because I had yet to send my attorney any of the information that proves my hardship. How was it done? So it is my own stupidity to not verify this. That was a year ago and I am sure I would have heard something about the hardship request. I have made inquiries to my attorney about this and the answers have been vague so my belief the request was never made. I am currently working on my own request for docket advancement. I can’t seem to get a response from my attorney and I am not going to sit on my hands and wait.