What Is A "continiously Prosecuted Claim"?

[broncovet]

In what way is it treated differently than an "original claim" or "new and material evidence" claim?

[john999]

Here is a trick the VA pulls where you have a continuously prosecuted claim via appeals and nod's and when you submit a new bit of evidence they use that evidence to establish the effective date. So your claim is five years old given appeals and remands and you then send in one more report and get an award, but it is from the date of the last medical report. Is this potential CUE since you are being ripped off for five previous years via a much later ED?

[Philip Rogers]

broncovet - I believe that is correct, when you file a claim against the VA you are prosecuting a claim against them. One can be the prosecutor/claimant or the prosecutee/VA. I'd say it's only negative if you're on the receiving end.

I believe, sometime back, the CAVC ruled that the claimant is pressumed to be seeking the maximum award and any claim awarding less leaves the claim open, or something to that effect. Don't remember exactly.

pr

Based on Delta's and Carlie's posts, I am guessing that "a continuously Prosecuted claim" differs from one that is "NOT" continuously prosecuted primarily with a potential Effective date of claim. That is, I am guessing that if a Veteran does not give up on his claim, and he keeps on filing NOD's to his denials, then it would be "continuously prosecuted".

I guess I am not sure I like the word "prosecuted"...that sounds like the Veteran violated the law, and so the Va decided to prosecute him.

At any rate, it sounds like Veterans want to keep their claim "continuously prosecuted" in order to try to win a particular effective date. That is, the Veteran needs to make sure he doesn't miss any deadlines... or else the VA is going to try to shaft him on his effective date.

Gee..maybe Vets need to reword their claim to something like this:

"I would like to apply for Veterans benefits for the condition of PTSD, effective December 23, 2009, and continiously prosecuted until I am awarded my just benefits, along with applicable retroactive payments, plus dependents compensation for dependents...........plus applicable SMC compensation, and applicable TDIU.

Please also accept this as my notice of disagreement to any decision which does not award the above beneifts."

[Philip Rogers]

John - Yes, it would be a CUE, "if" the claim was under continuous prosecution. Technically, anytime the VA receives new evidence, they are supposed to make a subsequent decision but they never do, unless the claimant/veteran continues to prosecute the claim. I'm sure many claims are lost due to this procedural error.

pr

Here is a trick the VA pulls where you have a continuously prosecuted claim via appeals and nod's and when you submit a new bit of evidence they use that evidence to establish the effective date. So your claim is five years old given appeals and remands and you then send in one more report and get an award, but it is from the date of the last medical report. Is this potential CUE since you are being ripped off for five previous years via a much later ED?

[LarryJ]

BTW, just a thought:

I always word my claims, whether my own, or someone else's, with this wording "I am seeking the maximum benefits for this claim as allowed by law."

Why?

Well, just in case they think that I'd be happy with a "lesser" award/amount (you can NEVEERRR "cover-yo-butt" TOO much!).

[broncovet]

Larry

I like your idea. "I am seeking the maximum benefit allowable by law" should be in the fine print on the application form, and, tho its not, I read where the law says that anyway, but cant find a reference to it.

[john999]

Broncovet

I think the big thing about continiously presecuted claim is your effective date. It should be from the date you filed the claim regardless of how many NOD's, appeals and remands you got along the line. The VA often cheats on the effective dates on these kinds of claims such as making your effective date your last appeal instead of the date you filed the original claim.