hypertension Earlier Effective Date And Cue Question

[Guest jstacy]

This question is presented for the fine people at Hadit.

Claim filed for Migraine Headaches and Hypertension in 1994. Claim denied for no SMR was available, C@P was provided minus the SMR. ( Hypertension was again diagnosed to compensable level)

Asked to re-open in 1998 after VA had sent statement of case for another claim stating SMR was available.

Re-open request was denied because no new and material Evidence was received. It stated that the service medical was negative for any treatment, complaints or diagnosis of Migraine Ha and HTN. I tried to reopen again in 03. I had a C@P exam last year and got a copy of the record. I went directly to the summary pages for the Separation examination. guess What the C@P examiner and I found. Both issues were plainly listed in black and white. The Doc was great about it and wrote an excellent report. Now comes the hard part. They have been kicking this claim around for close to 4 years. It keeps getting kicked back and forth to the rating board to the development team.

The main question is: Can I get an earlier effective date and is this a CUE.

Any replys are appreciated.

[Pete53]

CUE is a real long shot but reasonably the VA failed to assist earlier claim and maybe there is an opening. I would hope so anyway.

As long as you don't let this make you sick if it does not work I say go for it.

[Berta]

John- as long as a claim has been continuously in the system-

(once the NOD is filed -you are technically in appeals)

the decision that the claim rests on cannot be CUED.

But it appears to me that

1. you re-opened in 2003 and that is the EED they will probably use.

2. of course this doesn't seem fair- based on the SMR situation.

3. I think you have the basis for a CUE claim on the 1994 decision.

At least by 1998 VA had "constructive" notice of the SMRs- (Bell V Derwinski) as the 1998 SOC states.

I sure hope others will think about all this-and comment here -

John has evidence that should award back to the re-open date-(2003)

He can certainly file a CUE while this claim is in process- on the final past decision.

Yet -this might further hold up the claim they are working on now-

There is no time limit on CUE-

John- have you ever sent them a query at the VA web site (it is being updated -hope they are back on line)

to ask for the specific status of your claim?

Do you have a vet rep who could look into this?

I am concerned that this re-open is so old -then again my RO- three years is normal from filing to rating-

You could also NOD the EED on the award decision- which I hope you get soon-

You presented a concise argument here-

That is why CUEs should be stated simple-

They legally erred, the vet did not appeal, they erred per VA case law at time of CUE,and

their error cost the vet award and retro-

In the older decisions- how did they final rate the HBP and migraines as NSC?

Seems to me that would show the SC rate they would have to pay as retro on a CUE-

because they had already determined and acknowledged the condition -yet rated it as NSC then.

was this initially a not "well grounded" decision?

Any thoughts out there?

Most imporatant thing I see here is that John has to get closer to an award letter to see what steps to take next-

There is no limiting date on CUES- vets file them 40 years after the fact- I posted some successful CUES here at hadit.

[Guest jstacy]

Berta, thanks for the reply.

I did not send a NOD for the 94 or the 98 Decisoon for the HA and HTN, both were final decisions. As for the CUE, the AL Vet Rep told me I could not file a Cue with New evidence. I told him the Evidence was in the SMR and it was not new.

Here is what I have decided to do.

I am going to wait until the rating decision is sent to me on all outstanding claims. Then I will NOD all decisions that are unfavorable of low balled.

I will ask for an EED for the HTN and HA based on CUE. The VA failed to consider the evidence at the time of the rating and it was in their posession.

I hope they let attorneys in the door then because I have a good one waiting to get at them.

[Berta]

John- that all sounds like a very good idea to me-

I see what your SO is saying but he is missing the whole point of CUE- legal error.

You will get help at hadit if you file a CUE.

[free_spirit_etc]

This is a bit old - so I am not sure if it is still effective - but is interesting...especially the part where they discuss loss of medical records and withholding of information by the service department as clear and unmistakable errors....factual errors.

www1.va.gov/ogc/docs/PREC_88-90.doc

DATE: 08-22-90

CITATION: VAOPGCPREC 88-90

Vet. Aff. Op. Gen. Couns. Prec. 88-90

TEXT:

Request for opinion, effective date of compensation under 38 U.S.C. § 314(k); (5 U.S.C. § 552(:o(6))

6. Here the adjudication official has recommended that the payment of benefits should be retroactive to the veteran's initial entitlement dates. FN4 Consistent with 38 C.F.R. §

3.400(k) and 38 C.F.R. § 3.105(a), benefits retroactive to the initial date of entitlement are limited to situations in which there was clear and unmistakable error in a previous

determination. The term clear and unmistakable error does not appear in title 38, United States Code. FN5 However, there is regulatory authority for the proposition that benefits may be retroactive to the initial date of eligibility in such a situation. See 38 C.F.R. §§ 3.400(k) and 3.105(a). The fact that this term appears in the regulation can be interpreted as the codification of the longstanding VA policy that a veteran should not be deprived of a benefit as a result of a factual error (such as the loss of medical records or withholding of information by the service department) that forms the basis of a decision later shown to be clearly and unmistakably incorrect. See 22 Op.Sol. 722-A (1935); 32 Op.Sol. 472 (1935). See also Digested Opinion 7-17-84 (1-17 38 C.F.R. § 3.400). This

situation must be distinguished from instances where a new statute, or administrative issue alters the interpretation of an already existing benefit. In the later situation, 38 U.S.C. § 3010(g) and its implementing regulation 38 C.F.R. § 3.114(a) control the effective date of the benefit.

HELD:

Where a VA administrative issue provides the legal interpretation establishing a veteran's entitlement to special monthly compensation authorized in 38 U.S.C. § 314(k), the effective date of benefits is determined by the application of the criteria set forth in 38 U.S.C. § 3010(g) and its implementing regulation 38 C.F.R. § 3.114(a).

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1 BVA may on its own motion correct an obvious error noted in the record. 38 U.S.C. § 4003©.

2 If the veteran filed a notice of disagreement with the initial agency decision on or after the passage of the Veterans' Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105 (1988), the veteran may seek review in the newly created Court of Veterans Appeals (CVA) if he files an appeal with CVA within 120 days of the date the final BVA decision is mailed. 38 U.S.C. § 4066(a).

3 Situations involving a factual determination that are found to be based on clear and unmistakable error are not addressed in 38 U.S.C. s 3010(g). In those cases payments may be made retroactive to the initial date of entitlement. See para. 6 infra.

4 In one situation, the initial compensation date was December 6, 1975; in the other veteran's case, initial compensation was effective June 16, 1983. In both cases, the initial compensation date was the day following release from active duty.

5 The phrase "clear and unmistakable evidence" does appear in both 38 U.S.C. s 311 and 38 U.S.C. s 333(:P, in the context of presumptive service connection.