Not Sure If I Should Do A Cue

[ron68]

hi i filed a claim for sinusitus back in 2003 i was denied for no medical evidence. i reopened the claim 2012. at my c&p the examiner put down it was noted from my c-file i was diagnosed with sinusitus if i receive a rating now should i do a cue for retro back to 2003.

[carlie]

hi i filed a claim for sinusitus back in 2003 i was denied for no medical evidence.

"no medical evidence" - of which - shown on active duty - OR - current sinusitis condition?

i reopened the claim 2012.

at my c&p the examiner put down it was noted from my c-file i was diagnosed with sinusitus

I'm surprised you already got a C&P exam this quickly.

So, the C&P examiner has stated that it was noted in your c-file that you were diagnosed with sinusitis.

Is this notation of diagnosis in your c-file from, SMR/STR's on active duty - OR - a VAMC medical record?

Did the examiner state something like or close to -

you currently have sinusitis and in their opinion it is a chronic condition,

that the current condition is at least as likely as not related to XXX evidence,

as shown on active duty.

if i receive a rating now should i do a cue for retro back to 2003.

First off, is to see the results on the rating decision.

If it is granted as SC'd - then look to see what evidence was factored in

to support SC, now being granted.

If SC is granted and based on your active duty SMR/STR's, and the VARO adjudicates

the effective date of the claim, being re-opened in 2012,

then I would consider submitting a NOD on this effective date

and refer to 38 CFR 3.156 c.

This would be my path to attack the effective date, rather than submitting a claim of

CUE on the prior denial.

Aslo - a couple of questions to you.

What was your date of separation?

What date did you submit the original claim for sinusitis?

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

http://ecfr.gpoacces...1.60.65&idno=38

JMHO

carlie

Edited March 15, 2012 by carlie
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