Cue, Nod, Recon Question

[Notorious Kelly]

I want to appeal just one item in my denial.

I know for Reconsideration you must submit new evidence.

What's confusing is the denial makes no mention of evidence from C & P, other info I sent them etc.

I read that submitting the same evidence delays your claim, so I'm confused whether to file a Reconsideration using the same evidence, a CUE calling attention to the evidence, or a NOD.

I researched some previous posts before asking but it just isn't clear to me.

Thanks!

[carlie]

I want to appeal just one item in my denial.

I know for Reconsideration you must submit new evidence.

What's confusing is the denial makes no mention of evidence from C & P, other info I sent them etc.

I read that submitting the same evidence delays your claim, so I'm confused whether to file a Reconsideration using the same evidence, a CUE calling attention to the evidence, or a NOD.

I researched some previous posts before asking but it just isn't clear to me.

Thanks!

Notorious,

In my opinion for reconsideration you have to submit ADDITIONAL evidence, not necessarily by VBA's

standard of "NEW" evidence.

Keep it mind though, it is not to be what they consider as cumulative evidence.

I've copied and pasted this from a BVA decision as it shows what they mean by cumulative evidence,

" The evidence added to the record since the April 1993 Board decision

is cumulative or does not create a reasonable possibility that the outcome of the decision would be changed if the claim were reopened."

Does the decision that denied the issue list the C&P and or "other info." you sent them, in the EVIDENCE Section,

even tho they did not discuss it in the Reasons and Bases Section ?

Notorious, remember a claim of CUE is only filed on a final unappealed decision.

If you're still within the time limits to file a NOD - then the claim issue would not

be ripe for a claim of CUE.

Now, Berta does frequently suggest asking the VBA to CUE themselves.

[Notorious Kelly]

Thanks, Carlie.

That helps clarify some.

It looks like they took information selectively from an exam/C&P but I've got to dig the Pile O' Records out of the truck to confirm and file NOD. (Good thing I didn't burn em, like I was gonna)

I don't mean to be cryptic but have reasons for not posting more detail here.

Thanks again!

[carlie]

It looks like they took information selectively from an exam/C&P but I've got to dig the Pile O' Records out of the truck to confirm and file NOD.

(Good thing I didn't burn em, like I was gonna)

I don't mean to be cryptic but have reasons for not posting more detail here.

Thanks again!

Notorious,

Yes, they often select the filet out of a C&P - that support's their denial.

NO - NEVER - if your going to burn that "Pile O' Records", burn them to CD's and make copies,

stash one in a safe place as you may ALWAYS need them.

Hey - it's OK - remember, our secrets are safe with no-one : )

[broncovet]

Kelly

I am pretty sure I recall reading that the BVA has no authority to change a decision that the Veteran does not file an NOD to, and this is inclusive of other issues.

Far fetched (but possible) example:

You get awarded 70% for depression but you think maybe your symptoms are closer to 50%. However, you file a NOD because your Sleep apnea was denied. In your NOD, you need to specify the issues, in this example: I disagree with the Nov. 1 decision denying sleep apnea. In this instance, the BVA wont do something like deny your sleep apnea and ALSO even reduce you from 70 to 50 for depression. They cant, as they dont have jurisdiction over any issues other than the ones you file a nod on, even if they think a reduction for depression is justified.

Others can chime in here, but I dont think the BVA can adjuticate an issue UNLESS the Veteran files a NOD on THAT ISSUE.

So, your "other issues" become final, and the only issue pending is the one(s) you file a NOD on.

[john999]

In a NOD I think all you have to do is say you disagree with such and such decision dated xx/xx/xxx. I could be wrong but I don't think you have to be more specific. It is good if you are more specific.

[broncovet]

Frankly, the BVA (and a DRO or even CAVC) is not there to reduce Veterans benefits (unless the RO proposed the reduction first and its under appeal)

Remember, the BVA wont adjudicate a claim, unless 1) the RO has adjudicated it first OR the Veteran has signed a waiver of RO consideration. This, IMHO, would apply whether or not the outcome was favorable to the Veteran.

From a practical standpoint, the BVA doesnt have time to do reductions (unless the RO proposed the reduction first and it is under appeal). The BVA doesnt go through your claim and try to find a way to cut your benefits. There is a procedure for this, and it is done by the RO, not the BVA, CAVC, etc.