If One Claim In, Can I File Another Supportive One?

[autumn]

PVA has my claim now working on getting the MS secondary issues lined out.

i have medical documentation that supports SC for another part of my spine that was injured while active duty. PVA said they don't want to file that yet and to wait until all this MS stuff is done.

would it be unwise to file the other claim myself? at the least to get the supportive data into my c-file? the VA raters are very busy as is the VA. my way of thinking, and it certainly could be wrong hence i ask you folks, is to get the supportive claim in.

[rakkwarrior]

well, we will say how it plays out. whatever needs to be done & if it can be done i'll follow through on it and we'll see.

The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. Livesay v. Principi, 15 Vet.App. 165 (2001)(citing) Crawford v. Brown, 5 Vet.App. 33, 35 (1993). 38 C.F.R. § 3.400.

The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred if a claim is received within one year of such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Thus, three possible dates may be assigned depending on the facts of a case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

[autumn]

The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. Livesay v. Principi, 15 Vet.App. 165 (2001)(citing) Crawford v. Brown, 5 Vet.App. 33, 35 (1993). 38 C.F.R. § 3.400.

The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred if a claim is received within one year of such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Thus, three possible dates may be assigned depending on the facts of a case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

the way that reads to me, is, then why prove a CUE?

[rakkwarrior]

A CUE is a legal error in a decision, legal errors which require the following criterion to be met: To establish clear and unmistakable error in a final decision of a RO or BVA decision, a claimant must show that (1) either the correct facts known at the time were not before the adjudicator, or that the law then in effect was incorrectly applied; and (2) had the error not been made, the outcome would have been manifestly different. Ingram v. Nicholson, 20 Vet.App. 156 (2006)(citing Grover v. West, 12 Vet.App. 109, 112 (1999); 38 C.F.R. § 3.160©.

Specifically, pursuant to Title 38 C.F.R. §3.105(a), Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision.

Effective dates, as assigned under 38 C.F.R. §3.105(k) Error (§3.105). states, Date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision.

To File a CUE the claimant must plead with specificity the legal error which would reverse the prior decision, not relying on difference of opinion.

The Court held, in Rudd v. Nicholson (2007), that VA claimants may not properly file, and VA has no authority to adjudicate, a free-standing earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. The Court reasoned that to allow such claims would vitiate the rule of finality. Rudd, 20 Vet.App. at 299. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a free-standing claim for an earlier effective date is not one of the recognized statutory exceptions to finality. Id.

Generally the claimant has one year after notification of a VA Rating Decision to timely appeal the decision or continuously prosecute or reopen that decision, a disagreement with an assigned effective date is manifested by filing a Notice of Disagreement (NOD) to the appropriate RO decision. 38 C.F.R. § 20.201 (2010). A failure to appeal that decision within one year makes the decision final. 38 C.F.R. § 20.302 (2010).

In many cases veteran file CUE's on effective dates, not understanding the finality of unappealed decisions, they then try to reopen or file CUE's to obtain earilier effective dates, these two holding bar the entitlement to an earlier effectivve date but for a legal error in a prior decision. I hope this helps clarify effective dates and CUE's.

[rakkwarrior]

Side note: PVA as a rule has excellent NSO;s who know how to prosecute SMC issues and Rating Criteria specific to those disorders which potentiate the loss of use. I would run your ideas by them, you can even take them my posting, they should be able to understand and explain quite well what is required. Remember NSO's/VSO's have access to your prior decisions at their finger tips and can analyze the issues quite efficiently.

[autumn]

Side note: PVA as a rule has excellent NSO;s who know how to prosecute SMC issues and Rating Criteria specific to those disorders which potentiate the loss of use. I would run your ideas by them, you can even take them my posting, they should be able to understand and explain quite well what is required. Remember NSO's/VSO's have access to your prior decisions at their finger tips and can analyze the issues quite efficiently.

i will pass this on to them.

thanks for the info. we'll see ...

[autumn]

does one's VSO have a copy of the c-file or is that only at RO?