I Need The Big Wigs Again Hadit

[Mr cue]

if u dont remeber my claim please go to my need the big wigs posting it all there. any way i got my decision and my elbow was granted to 94-2001 20% and my neck 20% 94-2001 and my iu was remaned.but here my problem i cue the 94 decision bva say there can not be a cue of a open claim this when i found out that my claim from 94 was still open. 2001 i was award 60% for my neck with iu. so if my neck claim was open all that time and i won in 2001. shouldnt my neck 60% be effective date 94. has anyone every seen someone claim just sit there for all those years. i am going to put in reconsidration letter soon i think i need lawyer now anyone got one that might help with this. i been do my claim my self and they keep playing with me. i need a cases were this happen cant find one. i guess what i am ask can the big wigs come out and help me here.

[jbasser]

It depends on the condition of your neck VS the regs as they were published circa 1994.

Has the severity increased since 94 to now?

The remand may be addressing the issue you are asking.

It is true, you cannot cue an open claim.

J

[carlie]

2001 i was award 60% for my neck with iu.

so if my neck claim was open all that time and i won in 2001.

shouldnt my neck 60% be effective date 94.

yulooking,

As jbasser posted that would depend on the regs in effect at the time

AND what the medical evidence at the time showed.

has anyone every seen someone claim just sit there for all those years.

yulooking,

Yes I have seen many claims stalled for many, many, years.

Sometimes a writ of Mandus is requested.

i guess what i am ask can the big wigs come out and help me here.

yulooking,

I don't know who any of the big wigs are.

Hope this helps a vet.

carlie

[Berta]

You did GOOD!!!!!!

However John and Carlie are correct in that the medical evidence VA had from 1994 to 2001 will determine a staged rating (or it should)to reflect that you went from 10% up to 60% on the neck claim.

There is info here under search for how staged ratings are determined.

BUT with the IU claim on remand- that could resolve all these issues.

With the award letter and if the medical evidence and regs from 1994 to 2001 warrant the staged rating- ,ask them to reconsider the medical evidence that would warrant a staged rating from the 10% up to the 60%.

I guess my point here- you were RIGHT and they did owe you money- but if I were you I would focus on the TDIU claim ( as well as staged rating on the neck claim)

but the TDIU is the best decision you can get-.IMHO

Luckily I think the BVA decisions go back to 1994 at the BVA web site- you could search under 1994 for any claims similiar to yours to see if the regs changed (I dont think they did in your case)

and then search your medical records for evidence to show that the neck should have had staged ratings from 1994 to 2001.

I still wonder why I didnt do this in 1997 when they awarded my husband 100% from 30% he didn't get there over night.I could have asked for reconsideration as I had medical evidence to warrant staged rating.But really didnt even consider this and I am glad you did.

With the recon request send them anything you can find in the med recs (like maybe increased med dosage) whatever it is specific to the neck disability (check the old SOCs and C & P exams too and any Xrays etc that show changes) that would support a staged rating.Use the Schedule of Ratings here at hadit to fit your medical evidence into the higher ratings.

Congrats!!!! You have a victory here- and it is commendable!

Edited December 22, 2009 by Berta

[Mr cue]

ok than if my neck claim 94 was unadjcated it never became final than 2001 i put papers in ago to 60% than 94 is my effective date for 60% not 2001.

"Clear and Unmistakable Error" - also commonly known as CUE - is a mechanism to reopen old claims by challenging "clear and unmistakable error" in a final VA decision. This procedural device is rarely used, and even more rarely successful. However, it is an enormously, beneficial remedy for the veteran when properly applied.

The normal rule is a Rating Decision by the Regional Office becomes final and not appellable unless the veteran files a Notice of Disagreement within one year of the date of the Rating Decision. [See Appeal] If the veteran fails to appeal the Rating Decision, the veteran is bound by it. Whatever it has decided is binding. It is an "adjudicated" or final decision. The veteran can only avoid its effect by seeking to reopen the claim with new and material evidence or filing a CUE claim. The same is true with a decision by the Board of Veterans Appeals. In the event the veteran does not timely appeal a Board of Veterans Appeals' decision to the United States Court of Appeals for Veterans Claims, the veteran is bound by it. [See

Appeal]

The purpose of the CUE claim is simple and straight forward. Like everything else in the VA claims process, it is extremely technical, and entirely dependent upon the facts involved. Its focus is to revise a finally decided claim because the final decision was based on "clear and unmistakable error". It may used against any Regional Office Rating Decision, or in most instances against any decision by the Board of Veterans Appeals. It, however, may not be used against claims twice decided by the Board of Veterans' Appeals, or by claims finally decided by the United States Court of Appeals for Veterans Claims, the United States Court of Appeals for the Federal Circuit, or the extremely improbable decision on a claim by the United States Supreme Court.

The relevant regulations provide a CUE claim must: (1) clearly and specifically set forth in sufficient detail; (2) the alleged CUE of fact or law; (3) the legal or factual basis for such a claim; and, (4) why the result would have been "manifestly different", but for the alleged error."

Unfortunately, the normal rules friendly to the veteran do not apply in a CUE claim. Specifically, this includes the following rules which do not apply: (1) the "benefit of the doubt" rule which mandates the veteran receive every benefit of the doubt in the development and review of his or her claim; (2) the "new and material evidence" rule which reopens a claim if the veteran supplies new and material evidence; (3) the VA's duty to develop the claim in so far as it must obtain records and provide the veteran notice; and, (4) the VA's general duty to assist the veteran in his or her making the claim. These rules, the heart of VA claims processes, do not apply.

The focus of the CUE claim's review is not new evidence. In fact, new evidence is not admissible. Instead, the focus is on the evidence which was in the record, or which was in the possession of the VA but had not been placed into the record. The latter instance might include service medical records which had been misfiled or simply never properly retrieved by the VA in its development of the claim. While these records were not in the actual claim record, the records must have been in the possession of the VA though to be considered.

The focus of the VA's review of the CUE claim is whether the alleged error actually occurred, and, even if it did, would the result have been "manifestly different". That is favorable to the veteran, but for the error.

While a veteran may not challenge a final decision by a CUE claim based on the VA's alleged failure to develop the claim's file originally, or provide the veteran the appropriate notices required by the law, or any other failure in its duty to assist the veteran in making his claim, a CUE claim may be used to challenge the VA's failure to "sympathetically develop" a claim. However, this failure must be evident from a review of the actual record the claim was decided on, including other documents not in the claims' file, but which were in the possession of the VA at the time of the decision. This type of failure is most often focused on the VA's failure to develop the claim by broadly reviewing the evidence for all claims whether raised by the veteran or not. The VA's limited focus of reviewing the evidence failed its duty to broadly and sympathetically develop the entire range of available claims. That is, the VA missed a claim, although not raised by the specific language of the claim, which was raised by the evidence contained in the record.

For instance, assume a veteran files a simple hand-written filled in form seeking relief for his headaches. While developing the record in the claim, evidence comes forward from whatever sources which shows veteran actually is suffering from several other maladies which appear potentially service-connected. Possibly a herniated disc in his cervical spine, and diabetes (and he is a Vietnam veteran with presumed exposure to Agent Orange). The VA must develop these claims. It must then also make a decision on them. In the event it does not, the claims remain unadjudicated claims.

Another type of CUE claim is an attack on the effective date granted to a claim. This is often seen in either of two failures by the VA.

The first is the non-adjudication of a claim expressly raised by the veteran. If the record shows veteran made a claim, which was simply overlooked and not decided by the VA, the claim is unadjudicated. That is it was never decided and it remains an open claim. If a veteran files a claim for the same benefit sometimes thereafter, normally by filing new and material evidence which reopens the claim, the effective date for this newly reopened claim relates back to the date of the filing of the prior, unadjudicated claim.

The second is an offshoot of the CUE claim based on the VA's failure to sympathetically develop the claim as described above. If the VA had ignored a claim which had been raised by the evidence - and not raised by the veteran's actual claim - [as described above] the claim was and remains unadjudicated. As such, the claim is a pending, never-decided, non-final claim. If a veteran files a claim for the same benefit sometimes thereafter, the effective date for the new claim relates back to the date the evidence first existed in the prior unadjudicated claim's file. That is, although it is a new claim, since it is seeking benefits which are like the benefits the unadjudicated claim's benefits sought [or should have sought if the VA had developed the claim properly when it was raised by the evidence], its effective date relates back to the time when evidence existed in the record which triggered the VA's duty to sympathetically develop that prior claim.

CUE claims can also be based on failures to follow the law in effect at the time of the original decision. This includes both regulations and statutes.

CUE is a very rare, but extraordinarily powerful remedy when available. The key is knowing when and how to seek its unique relief. It rewards are - when available - significant.

[jbasser]

You have to take into consideration your condition in 1994. I see the claim was awarded at 20 percent from 94.

How the evidence is considered is not a cue. There is no cue as I see it and the Va is correct in your rating unless your condition warranted a higher rating, thus the VA erred in failing to properly apply the regs in existance at the time of the original claim.

You have to look at your evidence from back then to determine your Range of motion and compare it to the regs in effect.

I can send you a link to the 4.71 A circa 1994.

Good luck but I think you may be spinning your wheels.

J

Edited December 23, 2009 by jbasser

[Berta]

"ok than if my neck claim 94 was unadjcated it never became final than 2001 i put papers in ago to 60% than 94 is my effective date for 60% not 2001."

There was no CUE as the claim was not final-we don't know if your medical records reveal 1994 as a 60% EED.

our point is that it is the medical evidence from 1994 to 2001 that needs to show they gave you the wrong rating(maybe they DID owe you 60% in 1994) or they owe you a staged rating.

We are bringng up the 1994 regs only because the rating criteria for this disability could have changed- not because they would show a CUE occurred,

if the medical evidence in 1994 warranted a 60% rating then raise this issue in a Reconsideration request and refer them directly to the 1994 to 2001 schedule of ratings for the 60% and also send them any evidence you have that warranted the 60% at that time.

Or any higher rating then what they gave you-

(I dont know why my post came up in big blue letters-not shouting here-just trying to clarify this.)

John said it all:

"You have to take into consideration your condition in 1994."

As it fit into the regs and along with the medical evidence from 1994 to 2001.He is right.

With retro coming you might even want to consider getting an independent medical opinion to sort through your medical records.

But the results could be the same.

Or -in the reconsideration request state that your disability obviously increased from the original percent up to the 60% and you want a staged rating from 1994 to 2001 that fully considers the medical evidence during that time frame.

Staged ratings are found in many BVA decisions and the VA probably owes many vets a staged rating that they never questioned.

Your medical records will reveal anything that showed an increase in the neck disability-such as X rays or MRIs can be compared, additional meds needed and/ or increased therapy,

it wont be easy to sort that all out but if the evidence warrants a staged rating,or DID warrant 60% in 1994 -then this issue should be mentioned-but I sure hope it does not hold up your remanded TDIU claim-

what is the date you filed for TDIU?

Edited December 23, 2009 by Berta