Vync

Okay here is an example of an aggravation disability issue discussion by a former VA DRO rater and long term VSO.  In this example he is talking about Sleep Apnea but aggravation is the topic of the discussion.  
"The association between sinusitis and sleep apnea is well known and nobody at VA is going to take issue with an assertion from you that sinusitis can aggravate sleep apnea.  The hurdle you are facing isn’t whether or not this is possible, but rather whether or not YOUR sinusitis aggravated YOUR sleep apnea and no scholarly article in the world will establish this unless the article is specifically about you.   This will require a medical opinion addressing you personally.  

Remember, just because sinusitis can aggravate sleep apnea doesn’t mean that it did in your situation.  Other factors can aggravate it also.  All the article would do is to support what they already know.   It really won’t be of any use in your situation. 

What you need is a medical opinion from your doctor.  Absent that, VA might obtain a medical opinion for you, but there is no guarantee as to that, but also as to what the opinion will say. 

Another thing to keep in mind is that even if it is determined that there is aggravation, you can only be compensated for the amount of aggravation.  To determine this they must determine how bad your sleep apnea would be without the sinusitis and establish an evaluation, and then subtract this from the evaluation for your sleep apnea as a whole. 

For example, if you require a CPAP even without the aggravation, this warrants a 50 percent evaluation.  This 50 percent must then be subtracted from whatever evaluation your sleep apnea warrants overall which would most likely also be 50 percent.  This leaves a 0 percent evaluation for compensation purposes. 

This means that unless your sleep apnea has worsened to the point that heart problems have developed, a 0 percent evaluation is most likely when we are talking about aggravation.  To get anything otherwise you will need to be able to show that if it weren’t for the sinusitis you would not need the CPAP.  In this case they would only subtract 30 percent from the overall 50, leaving compensation for a 20 percent evaluation. "
In almost all my claims in order to cover all my bases I have successfully claimed
1. For my disability to be directly service connected AND/OR
2. Secondary service connected to an existing service connected issue  and
3.  That my disability is caused by AND AGGRAVATED by my active duty service OR  secondary service connected to an existing sc disability.
In my claims I have also successfully contended the strong VA medications has also caused and/or aggravated my disabilities for PTSD, Sleep Apnea, Heart Disease, Tinnitus, GERD and Hypertension.  You may be able to also argue that VA medications caused and/or aggravated your non service connected disability and therefore the non service connected disability can be service connected.  This has worked for thousands of vets over the past 50 years.  You will probably need a favorable nexus medical opinion from a Dr. or specialist to win the claim/appeal. Go for it.
My current ratings are for
PTSD 70%, due to Nam combat
AO Heart Disease 60%,  due to Nam Agent Orange toxin
GERD 60%, due to PTSD and VA meds
OSA Sleep Apnea due to PTSD and VA meds 50%
Tinnitus 10%,  due to Nam combat and medevac pilot
Hypertension 0% due to PTSD and Nam Agent Orange plus
SMC-S for five years
My PTSD 70% rating started in 1998 to the present time.  
My comment is not legal advice as I am not a lawyer, paralegal or VSO

 

It may soon get easier for Vets to get access to Marijuana.  
https://www.disabledveterans.org/senate-votes-to-empower-va-doctors-to-recommend-medical-marijuana-to-veterans/
Apparently medical marijuana is now legal in 38 states, while in 12 its still prohibited.  
https://www.axios.com/2023/04/20/weed-pot-april-20-medical-marijuana-legal

Its complicated, as ususual.  
If its service connected, there are different kinds of lung cancer.  Maybe you can find your's here:
https://www.law.cornell.edu/cfr/text/38/4.97

You got part of what I said correct, the other part I did not say.  Here is the regulation, from 38 cfr 3.350, in relavent part:
  
 Im not sure where you got the part about not counting secondaries.  I paraphrased it as "a single 100 percent disability plus an additional (combined) 60 percent, seperate and distinct." I dont recall saying you cant count secondaries, I said they had to be seperate and distinct.  If I did post something about not counting secondaries, then my interpretation was a stretch, likely incorrect, and an error on my part.  It wont be my first error, nor will it be my last.  
As it says, they have to "involve different anatomical segments or bodily systems. "
Stick with reading the regulations, not my or other's paraphrase.  Im not competent to interpret regulations, Im neither a judge, nor a lawyer. 
A secondary condition may or may not "involve different anatomical segments or bodily systems".  I dont make diagnosis, and I am not competent to decide if condition A and secondary condtion B "involve seperate anatomical segments or bodily systems."  Ask your doctor if in doubt.   
 

@Dot09 I think @broncovet knows way more about N&M evidence than I do so I will let him give you his opinion. My opinion is that it might net you a 70% rating, but not necessarily fix the effective date unless it proved your met the 70% criteria. 
However, once a claim has become final, that's when CUE would apply. I agree with your attorney that you cannot submit anything new. However, the VA must consider any evidence of record at the time the decision was made, even if the evidence was not before the person making the decision. The term "of record" means in the VA's possession. Of course, a new IMO from a few months ago would be great going forward as long as it was an adequate IMO, but would likely not change the decision back in 2014.
Glad to help with my opinion.

CUE cannot rely on any new evidence. 
CUE cannot be asserted as benefit of the doubt or a difference in opinion.
You must prove that the VA made an error by using evidence, laws, regulations, and policies (M21-1) which were in effect at the time the decision was made.
 
For increases (not SC), the examiner is supposed to review the records from 12 months prior to when you filed an increase to verify you meet the rating criteria for an increased %. 
Here's the current criteria which we will use for this example:
https://www.ecfr.gov/current/title-38/chapter-I/part-4/subpart-B/subject-group-ECFRfa64377db09ae97/section-4.130
Let's say that you have neglect of personal appearance and hygiene, yes, that would qualify you for 70%. From what I have read (don't quote me because I am not an expert), you don't have to meet all or multiple criteria. Look at where the semicolons ";" are placed and you will find 8 possible criteria for 70%:
Look back in your records for the according date range prior to filing for an increase. If you see that criteria in your records, you should qualify for 70%. Having it noted repeatedly is helpful because to does show a pattern of repetition. That is literally documented in black and white. Reasonable minds should be able to conclude if they can see it in the records or not.
Then you have an examiner that sees you once and thinks you are faking it (malingering). Keep in mind that you might have had eposidic (occasional) improvement. However, they can't erase your documented history. Also, keep in mind that some of the criteria is a bit subjective from the examiners side, like when it mentions "such as". That would give them the ability to interpret whatever that might be. Also, in some cases an examiner may have been requested to perform a current assessment (C&P) of your situation at that specific time. However, they must still consider the impact of what was documented. Depending on the amount of time between when you filed an increase and when the exam occurred, you might win a staged rating which could be a retroactive increase to 70%, but then a 50% from the time the exam occurred going forward.
 
@El Train CUE claims have the magic of not being restricted to any date. You literally can file a CUE at any time. I won one a couple of years ago against a claim that was completed in 2000. I filed in 1995 and had a C&P in 1997 after the BVA forced the VARO to do it. During that exam, the examiner failed to follow the rating criteria and regs regarding an aggravated disability. The examiner simply stated his opinion and the VARO reduced my initial rating by 10%. I looked up the laws/regs/policies in effect at the time and explained that what the examiner said was "not in terms" of what the rating schedule said back in 2000. They granted CUE and increased my initial rating. However, Dot09 is dealing with the mental health criteria which is a bit different because it can allow the examiner to exert their "opinion". Yet for increases they must look back 12 months prior to requesting the increase. If Dot09's records show they met the increased criteria, then they hopefully should have been granted it appropriately. In my opinion, it sounds like Dot09 may have drawn the short straw and received an anti-vet examiner...
 
 

I believe, records in military archives but not actually in the VA file at the time are also considered to be "of record".  Example:  IPTR of injuries that include a head injury because of unconsciousness noted in the IPTR but not in the NARRATIVE SUMMARY which is the only item from the hospital inpatient records that was in the old hard copy files.  My case, complex partial seizures noted by description in the Nursing Notes in the IPTR but not in the NARRATIVE SUMMARY.  I was unaware of the notes also until 1989 when I spotted them in the IPTR.  I had filed an extra-schedular claim for TDIU when my combined rating was only 40% but a C&P physician recorded I would not be able to hold a job "because of his spells."  In April of 2020 I was granted TDIU back to September of 1985, my last full time job, based upon that unprocessed 1987 extra-schedular claim and not having worked at all, even parttime since 1990.  There was a CUE in it because the BVA failed to take into consideration page 2 of my parttime employer's statement.  It would have qualified as a CUE because the 21-4138 2 sided form was in the file.  Just obviously not read by the BVA judge writing the decision as well as the unprocessed extra-schedular 1987 claim. 
By 2020 there was also the CAVES Social Security record in the file.  I was granted SSDI after a very exhaustive investigation effective September of 1990 in 1996.  The VA claims process is not the only slow process.
Now, I believe, that is not a problem because all of the digital data records are moved to the VA benefits file including the IPTR of any military hospitalizations.
I am currently in a CUE claim that involves a nexus for seizures in the IPTR that was not recorded in the NARRATIVE SUMMARY.  A BVA decision on an RO decision that did not have the IPTR but the IPTR may have been in the file by the time of the BVA Decision.  But the IPTR was not in the BVA benefits file in 1974 and would have caused a more thorough injury residuals examination had it been there.  When I finally get this issue heard, I will post it quoting all of my posts which ever thread they are in.

I hope you have a positive outcome and good luck on the rest of the exams

I would imagine it would be similar to the video conference you had previously. You can actually look at the DBQ's online at your convenience right from the VA's web site: https://www.benefits.va.gov/compensation/dbq_publicdbqs.asp. This will give you a reasonable idea of what the examiner might ask. If you have the ability to print it, you could fill it out from your perspective to the best of your knowledge. Just go down to "Psychological" to find three DBQs and just read the ones which apply. Keep in mind that they change the DBQs up periodically. I really wish the VA would include the DBQ web site address when sending out C&P exam letters so vets would have an idea of what to expect.
Keep in mind the examiner may have already reviewed your MH treatment record history. They might only ask a limited set of potential questions.
 
This is the link to the rating criteria § 4.130 Schedule of ratings—Mental disorders:
https://www.ecfr.gov/current/title-38/chapter-I/part-4/subpart-B/subject-group-ECFRfa64377db09ae97/section-4.130
I included it so you can look at the way they are rated. Each row in the table can have one or more set of criteria.

Great information!
They should be cut and dry, straight to the point, just the facts without any opinion or emotion. The less you write, the less they have to read.
Describe any VA laws, regs, or policies they failed to apply properly at the time the decision was made.
Regarding the above, if the VA misplaces documents and they are not in front of the adjudicator at the time the decision was made, they still are in the record and can be considered once found. If the VA authors any documentation, be it handwritten, typed, radiology images, etc... the are considered to be in the record.
 
I hope the VA has trained their new employees on what CUE is and is not. When I filed a CUE in 2019, they did nothing for six months while trying to figure out which form I was supposed to use. I kindly educated them on M21-1 to inform them no form was needed. They still did nothing until I filed it on a supplemental. However, I have not checked to see if a form is currently needed or not, so double-check that if you plan to file any new CUEs.

To begin with if you meet the minimum criteria  for SMC-S  then I would go ahead and file for it and see what happens.  If it has been denied by VARO or BVA then appeal that with good arguments.  You can also remind the BVA and VARO of the appropriate regulations/laws that require them to assume the vet is filing for highest rating possible to include SMC. 
You can also file for a BVA reconsideration of your denied appeal and point out the above information I mentioned.  You may or may not be able to introduce new evidence in your reconsideration request or file CUE on the BVA or appeal directly to the CAVC.
My comment is not legal advice as I am not a lawyer, paralegal or VSO.
 

Not sure you can dispute a C&P exam from that long ago. You have to file a NOD within the year with new evidence.   I got a shoddy C&P exam once and I filed a complaint with my VARO after I got my hands on the exam (I pissed the examiner off and she went for a lil retribution).  This was within the one year year (Notice of Disagreement).  I had too much positive evidence in my favor for this bad exam to overcome. Ultimately, this complaint resulted in a few more C&P exams that went in my favor.
I'm not familiar enough with CUE's to say you have a case or not.  That would be an attorney question.

I have never had the fear that the Va will come after me but am selective in what I say. Because my conditions have only gotten worse and as far as filing a new claim I’ll continue to do so. As I’m going to file for gerd and ibs secondary to service connected medications. It’s appalling that the Va uses the tactics of delay and deny but on top of that low balling and rating at zero percent is very frustrating. Personally I think the minimum of a disability should be 10 percent. Point is it’s a disability therefore should be rated.
P.S. Hopefully in my lifetime I hope they add interest to back dates claims that way they will follow regulations more carefully

I found this on NVLSP site. Sounds like its right up your alley.
 Godsey v. Wilkie
On June 13, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) certified its first class action. The case, styled Godsey v. Wilkie, was a petition for extraordinary relief brought by Covington & Burling LLP and the National Veterans Legal Services Program (NVLSP). The petition was filed on behalf of veterans James A. Godsey, Jr., Jeffery S. Henke, Thomas J. Marshall, Pamela Whitfield. It sought relief for all similarly situated VA benefits claimants who have filed an appeal to VA’s highest tribunal, the Board of Veterans’ Appeals (Board), and since have suffered extended delays waiting for VA to begin moving their appeals forward in a process called “certification.”
The CAVC partially granted the petition in the same order that it certified the class action, concluding that 18-month or longer VA delays to begin that process are “per se unreasonable.” “Such delays are particularly intolerable,” the Court stated, “because they consist of nothing but waiting in line: ... no action whatsoever on the part of VA” while the veterans have continued to wait.
The National Veterans Legal Services Program (NVLSP) represents some of the veterans whose VA appeals have been delayed for a long time in the recently certified Godsey Class Action. In order to help us determine if you are covered by this Class Action, please complete this form.
Other Class Actions can be found hear.
 
https://www.nvlsp.org/what-we-do/class-actions/
 
 

As someone who has been waiting over three years for the Office of General Counsel to approve my application for a claims agent. I can tell you that you can only have one POA at a time. If you file a new POA it will cancel out the other. 

Vync
    This is the exact reason some suggest filing CUE, instead of a long appeal.  Berta mentioned that they can be much much faster than a long appeal.  But, always appeal within the year, UNLESS you have already received a letter that your cue was awarded.  

He definitely will be missed. I remember reading his site before I found Hadit.

Vync 
I feel your pain. I can’t imagine waiting 23 years of resolution. The longest I have ever waited was from 2009 to 2013.

AMA
Can't claim the AOD (Advancement on the Docket)
No toxic exposure, no Pact Act.
As stated in my OP, this is a simple request for an EED to an already rated service-connected disability. When reviewing my records for my legacy appeal I just won, I found VAMC medical treatment records of a disability claim that the VARO denied but later granted. So, I filed a claim, and the VARO sent me to a C & P exam and the examiner listed those appointment records and diagnosed records in her exam and opinioned that my symptoms began in service, and I immediately sought treatment within a year of discharge and was finally diagnosed (not mental).
The VARO completely ignored the examiner's opinion and denied my claim. I contacted the VARO and explained the situation and was informed what happened and I was ensured that if I filed a supplemental claim, they would catch it and grant my EED but my supplemental was also denied. I was then told to file an HLR but instead I filed a Direct Review thinking that I would get a proper decision from the BVA, but it has been sitting collecting dust.   

If the below chart is correct and true as it states that it was last updated October 11, 2023, why do I have a Direct Review Appeal well over 700 days and counting? Each time I contact the VA, I am informed my appeal is on the Direct Review Docket waiting its turn to be sent to the VLJ. I bet that I am not the only veteran. My appeal is only for an EED, and I already have a favorable LHI medical opinion that the VARO ignored and denied my request for an EED.
 
U.S. Department of Veterans Affairs | 810 Vermont Avenue, NW Washington DC 20420
Last updated October 11, 2023
 
https://www.bva.va.gov/images/appeals/ama-appeals-small.jpg

The only time I check ebenefits is to see how long the system would be down for maintenance, I typically check with the Whitehouse Hotline every thirty days or so. I am not worried about it. These are my last two appeals; I file my own claims and appeals all the way up to the CAVC and then I get an attorney. I won my unadjudicated decision myself at the BVA these last two appeals are just taking too long.

You can file a CUE on each error. Whether the VA will properly entertain each is another matter. jmo

pr

We have discussed this before Cue Claims are not a one-shot deal or pony. It boils down to how the CUE is claimed and how or if the Cue was denied or dismissed. 
 
 

Let's begin with the regulation on CUE: 
https://www.law.cornell.edu/cfr/text/38/20.1403#:~:text=Clear and unmistakable error is,different but for the error.
The Cue error, therefore, needs to be all these things:
1.  Undebatable.
2.  Outcome determinative.  
3.  Based on the records VA has in their possession at the time of the decision.  If VA was/is missing critical evidence, consider filing a 38 CFR 3.156 (new evidence) instead of CUE. 
4.  May be filed at any time, such as after the one year appeal period expired.  
___________________________________________
What CUE is NOT:
1. Cue can not be due to the fault of VA failing its "duty to assist".  
2.  A disagreement about how the evidence was evaluated is not CUE.  
3.  An error which "does not change the outcome".  As an example if the VA mis spelled your name, that is unlikely to change the outcome.  
NOTE:  The regulation "does not" support the "only one cue" theory.  Indeed, each decision could have more than one issue, and more than one Clear Error.  
    However, let's say you file CUE as you allege VA violated 38 CFR 4.6 and did not properly rate your PTSD.  
In this example, lets say VA denies your CUE claim.  It makes no sense to refile the claim with the same "entitlement theory".  Instead, if you dispute VA's denial of the outcome of your CUE claim, you may appeal that decision.  Or, you could locate still another VA error, and refile CUE under a new cue hypothesis.  For this reason, refiling the same CUE error, on the same decision, is unlikely to suceed, meaning there is some good reasoning in the "one pony" theory.  You should carefully consider your CUE error, ensuring that "you get it right the first time".  Overcoming an improperly filed CUE, could well be more difficult than overcoming an improperly filed appeal, due to the fact that "the benefit of the doubt" is not supported on CUE claims.  
    The "benefit of the doubt" is the standard of review, in "regular" claims (that is, nonCUE claims which are NOT at the CAVC review level or above).   The standard of review in Cue is increased form "benefit of the doubt" to a much higher bar to jump over, "undebatable".  It does not always make sense to "give up" the benefit of the doubt by filing CUE when a regular supplemental claim, or other appeal (such as HLR or BVA)  includes the benefit of the doubt, where a Cue claim does not.  
___________________________________________
Not all of VA's errors are CUE.  They can be error, but may or may not meet the criteria, above.  
Here are a few examples of CUE:
Some other great sources on CUE:
1.  Your attorney
2.  The Veterans Benefit Manual published by Lexis Nexus.  https://store.lexisnexis.com/categories/content-type/area-of-practice-153/veterans-benefits-manual-skuusSku12734
3.  If you can not afford a Veterans benefit Manual, and choose not to be represented by an attorney, you can research your own related case law, here:
http://search.uscourts.cavc.gov/
NOTE:  The results of the CAVC case law are in 3 categories:
1.  Single Judge.  A single judge decision is non precedential, and you should use caution in citing a single judge decision to support your claim.  
2.  "Panel" decision.  These are decided by a "panel" of judges, and are considered precedent setting, binding on other judges.  
3.  En Banc.  An en banc decision is where "all" of the available judges come to a consensus opinion, and is also binding on other judges.  
You can also review BVA appeals decisions.  While the BVA decisions in case "A" are not binding on case "B", they are useful especially if you are looking for precedential decisions because BVA decision are required to give a reasons and bases for decision.  In the reasons and bases, the Board often cites precedential case law, from CAVC panel decisions, CAVC en banc decisions, and, of course, Federal Circuit decisions and the US Supreme court decisions.  

Correct, Dot.  The criteria for SMC S (statuatory, there is also a housebound in fact) is "a single" 100 percent rating, plus a comined additional 60 percent seperate and distinct.  And, Bradley vs Peake shows that "tdiu counts" for the single 100 percent rating.  
BUT....you can not use a disabilty twice.  "If" your tdiu rating considered, say, a 50 percent for PTSD, you can not again use the 50 percent for PTSD to count toward the "additional 60 percent combined" portion.  
You need to review the decision to see "which" disabilitie(s) the VA counted toward tdiu.  Sometimes this information is not that easy to find.  
The VA takes "pyramiding" very seriously, and does not permit any symptom from being used twice.  There is legal precedence for this, but Im not going to cite that now.