Should I File A Nod?

[Guest rickb54]

On 26 June 2006 I received service connection for COPD secondary to Asthma. I was awarded 30% with an effective date of 3 May 2005.

I would not have been awarded COPD if I did not have a copy of my medical retirement board procedings which stated asthma with copd secondary.

When I was medically retired on 9 June 1986 I completed a VA Form 21-526E, titled "Veterans application for compensation or pension at seperation from service

" Under nature of sickness #6, diseases, or injuries for which claim is made, and date each began- I left blank

Under Nature of sickness #7 I entered SEE health Record.

I have reviewed this form over and over, the only typed information on the whole form is entered into #6

( the point is not what is there but that it was typed). #6 I had left blank and the va typed in the information.

This form was filled out under the supervision of some damn DAV guy. This guy told me not to put anything except see health record, I did what he said.

It seems to me if the va had read my health record, and reviewed my medical retirement paperwork, I would have been awarded COPD at the time of my retirement.

I want to know what the experts think, based on this information.

Should I file a NOD requesting an earlier effective date for the COPD, based on the fact that all I ever told the va in 1986 on the 21-526e was to see medical records. Wasn't it the va's responsibility to review my records and award me the COPD at the same time I was awarded the asthma, COPD is listed as a secondary condition right after the word asthma on the medical retirement paperwork, and in the medical records. Was it necessary for me to be specific, for COPD since I was not specific with at that time with any of my medical conditions.

Actually, the asthma was awarded on a CUE in 1988 , and the rating decision cites the physical evaluation board's report as evidence for the asthma, in fact it is the first think the va listed in the narrative as evidence. It stands to reason if the rater saw asthma (on the board's paperwork) then he had to see COPD.

What do you think? Do I have a case for NOD?

Or do I claim CUE and go all the way back to 1986, when the asthma was awarded?

Edited July 10, 2006 by rickb54

[Pete53]

I am no expert but it looks like CUE to me. I would not let it slide if it were me. I am not even sure if you should not ask for one or the other at same time?

[Wings]

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Precedent Opinions for 1989 to 2003

http://www1.va.gov/OGC/page.cfm?pg=2

PREC 4-2004 Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on Cue Claims Citation: Vet. Aff. Op. Gen Couns. Prec. 4-2004, VAOPGCPREC 4-2004, 2004 Law on CUE

A claim of CUE is a collateral attack on a final decision by a VA RO or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999).

Pursuant to 38 U.S.C. §5109A(a), a RO decision is subject to revision on the grounds of CUE. See also 38 U.S.C. § 7111(a) (revision of Board decisions based on CUE).

"In order for there to be a valid claim of [CUE], there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator - or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc); 38 C.F.R. §20.1403(a) (upheld in Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-97 (Fed. Cir 2000), cert. denied, 532 U.S. 973 (2001)).

CUE exists only when the error is outcome determinative, that is, the error manifestly changed the outcome of the claim decision. 38 C.F.R. § 20.1403(a) and©; Cook, 318 F.3d at 1344; Bustos, 179 F.3d at 1381; Disabled Am. Veterans, 234 F.3d at 696.

"If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." 38 C.F.R. §20.1403© (upheld in Disabled Am. Veterans, 234 F.3d at 697).

Disagreements about how the facts were weighed or evaluated and failures of the duty to assist cannot be CUE. 38 C.F.R. §20.1403(d)(2) and (3) (upheld in Disabled Am. Veterans, 234 F.3d at 697).

If the evidence establishes CUE, an undebatable, outcome-determinative error, the prior decision must be reversed or revised, 38 U.S.C. §§ 5109A(a), 7111(a), and the decision constituting the reversal or revision "has the same effect as if the decision had been made on the date of the prior decision," 38 U.S.C. §§ 5109A(b), 7111(b).

[john999]

I was reading some BVA decisions and the board said that to win a CUE is a rare event. If you are P&T what is the worst thing that could happen if you file a CUE on a very old original claim? Could the VA challange the fact of service connection itself? Every time I reopen my claim I wonder where it is going this time.

[Guest anfrnkie]

I was reading some BVA decisions and the board said that to win a CUE is a rare event. If you are P&T what is the worst thing that could happen if you file a CUE on a very old original claim? Could the VA challange the fact of service connection itself? Every time I reopen my claim I wonder where it is going this time.

hi john, i have 50 apleas in all are cue, and each appleal,has a letter of proof, right now va is working on this anfrnkie

[Wings]

hi john, i have 50 apleas in all are cue, and each appleal,has a letter of proof, right now va is working on this anfrnkie

Dear anfrnkie, are you also frank? How about posting an e-mail address so folks can write you personally . . . just a thought ;-) ~Wings

anfrnkie

Joined: 29-May 06

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frank

Joined: 29-May 06

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[vaf]

We filed an NOD for an earlier effective date on an initial rating, and didn't get it until two years later when it reached the Board of Veterans Appeals. But we didn't call it a CUE, just an NOD. I agree, you could phrase it something like, "I am issuing a formal Notice of Disagreement due to the fact that the VARO appears to have made a clear and unmistakable error (CUE) due to the following........" You could ask for a De Novo review at the VA regional level, that might help keep things simple.

In theory, the VA is obligated to review and consider all evidence in your service medical records, even for conditions you don't specifically claim, and rate everything that requires a rating. In practice, this doesn't happen. If you look at the VA's first rating decision letter to you right after you left the military, it should state something to the effect that the veteran's service medical records were "reviewed and considered." If they state it, they darn well better have done exactly that. Usually, they don't.

You'll want to try to keep things simple, which means trying to keep it local. If you don't get what you want locally, then it doesn't matter what you call it, an NOD vs. CUE, you'll still be waiting at least a couple of years for an appeal hearing at the Board, and then even more time for a Court hearing, if you take it that far.