Can It Work

[cooter]

With all the posting lately on EED's I have a question regarding my son. He served from "93-97". In "03" he began chemotherapy for colon cancer. In "04" he had surgery and put a claim in for colon cancer due to depleted Uranium and was denied. In "09" reopened his claim saying it was caused by unknown etiology and was granted in Aug. 2010 for 100%P&T. His EED was in "09" when he reopened the claim. Could it be possible to have the EED back to "03" when he first started Chemo?

[eagle-eye]

An EED of 03, the beginning of your son's chemo sounds like common sense to me. Isn't it worth a try? I'm just learning, but isn't his time running out for NOD?

Side note: sorry your son was so ill. I have two boys and can't imagine the ache for a sick child. Even when they're grown adults.

[broncovet]

When you appeal for an EED, ask for an early date as possible. However, IMHO you wont be getting 2003, but maybe 2004...that is when you first applied, but, for that you will likely need to use 3.156C missing SMR's OR find a CUE.

The reason is that N and M Evidence isnt likely to get you an earlier date..because the earliest that will be is the date you "reopen the claim for N and M".

Your best shots:

1. Cue. You will have to find that one. You are not only going to need to find an error, but that error has to be both outcome determinative and based on the laws at that time.

2. 3.156C, based upon SMR's that were lost when your claim was denied, which you "found" later.

There are a few others that occassionaly work, too. As an example, if you either did not get the RO decision at all or, if the decision did not contain how to appeal. Also, if you had earlier claims for other issues, this will help. For example, are you a victim of shredding? Did the VA fail to file the required SOC or SSOC? This can keep the claim Pending.

Even a 2004 Retro could be six figures, so it is definately worth your time to research it thoroughly. If you dont have a complete copy of your C file, you should get one first.

[cooter]

Just got off the phone with my son, and he mentioned there were some medical statements that wasn't considered in his 04 claim that could of made a difference in the outcome of the denial. Don't think he can file under 3.156C, due to no missing files. Maybe a CUE tho. He's going tomorrow to file his NOD. How should he write it, if he's claiming CUE. for his EED?

[john999]

If the evidence was in the hands of the VA and they chose to ignore or exclude it you file a CUE based on that fact.

If the VA had the evidence and chose to neither list it or refer to it in the decision you may have a CUE.

[Guest]

IMHO, yes he may have a CUE, but instead of filing for a CUE, file a NOD requesting an EED. They both can get an earlier effective date but with requesting a CUE, the veteran must prove a CUE was made. Instead file a NOD requesting an EED. VA can use both 3.156 and 3.157 if medical records and his chemo record in 2003 prove the link between the conditions, VA should grant the claim. If the NOD fails to grant the EED the veteran can then file a CUE later.

Edited July 4, 2011 by pete992

[carlie]

With all the posting lately on EED's I have a question regarding my son.

He served from "93-97".

In "03" he began chemotherapy for colon cancer.

In "04" he had surgery and put a claim in for colon cancer due to depleted Uranium and was denied.

What exactly, did the Reasons and Bases state to support the VA's denial of SC.

Also, was/is, colon cancer on a presumptive list for VA - SC - disability, that covers the

time/places, he served ?

In "09" reopened his claim saying it was caused by unknown etiology and was granted in Aug. 2010 for 100%P&T.

His EED was in "09" when he reopened the claim.

What exactly, does the Aug. 2010 Rating Decision state in the Reasons and Bases Section,

to support the VA's grant of SC/s and what is the exact disability/s that were granted ?

Also, what exactly, does it say to support their effective date provided for 09 ?

Also, what does it say to support the 100% P&T, as this might helps others in a similar situation ?

Could it be possible to have the EED back to "03" when he first started Chemo?

No way to know yet, answers are needed.