Cue On Original Claim

[NavyWife]

Hubby has 4 denials all for exactly the same thing.

If he wins a cue claim on his first, original decision- would he get backpay all the way back to that first decision?

Edited May 4, 2014 by NavyWife

[Army247]

To all CUE/EED SPECIALIST ( including Berta,Carlie &other Admin) Please help me resubmit an EED/CUE was previously denied.

I've attached decision. In short... in 1991 i developed migraines after a rushed spinal block during a

C-section for the birth of my daughter. The hospital was full & the doctor said they needed the room. Upon leaving service in 1994 I indicated migraines on my exit exam as well as asthma, tinitus & LBP. 6 months later. I received a check for $600 with no explanation. About a week later a letter rating asthma 10% everything else 0%. The letter stated there was NO MEDICAL evidence for migraines. Even though I was prescribed migraine & asthma medication while on active duty.

Fast forward 2006 I requested a C&P for asthma, LBP & Migraines.I now have SEVERE ASTHMA,SARCOIDOSIS OF THE LUNGS & COPD(NEVER SMOKED) 2009 BVA REMANDED the migraine appeal to the VA because I submitted a copy of my medical records from 1991, my entrance physical which stated I didn't have headaches or migraines upon entering service, my exit exam showing I did have migraines & migraine medicine upon exiting service & New & Material evidence from my private doctor that i saw when i was on leave & currently attend. Jan 2011 I was finally awarded 100% Asthma, 40% Back 10% tintus & 30% for Migraines siting a misdiagnosis of TENSION HEADACHES in my medical records in 1991 along with New & Material evidence. It was only back dated to 2006. Jan 2011 I

submitted a NOD requesting migraines are warranted to be rated at 50% and a CUE & EED. August 2014 they were all denied.

PLEASE HELP ME WORD & SUBMITTED A PROPER EED/CUE If I have one. I have come so far I'very been hospitalized several times since my denial and currently have pneumonia. I had to muster up the strength to reach out for help as I'm running out of time and so many other people can be help from my situation.Studio_20150605_192516.jpgStudio_20150605_192445.jpgStudio_20150605_192418.jpgStudio_20150605_192351.jpgStudio_20150605_192315.jpgStudio_20150605_192226.jpg

[Berta]

Did you ask this in an different thread too?

I gave a detailed reply early this AM to the same question.....somewhere else....

[Army247]

Im providing you with the docket number as per your request. Sorry if it duplicated.

Docket #08-26 162A

Edited June 10, 2015 by Army247

[Matthew Hill]

I would not be so quick to file a CUE claim here because I believe that you might have a better option in getting that effective date. A revision under clear and unmistakable error (CUE) is extremely difficult because you are bound by the law and the evidence in the C file at the time of the decision. It is a claim of last resort. Not to mention, if you have a claim open on that issue then you are expressly not allowed to file a CUE claim on that issue.

What I cannot tell from your facts is if VA did not get all your service medical records for the first decision. The BVA decision referred to the new evidence in this decision as current VA and private treating records but the subsequent rating decision granting benefits referenced service records showing headaches. Did VA have those service medical records when it decided your case?

If VA did not and, instead, added those service records here then you have a claim for an earlier effective date under 38 C.F.R. 3.156©. Under this regulation, VA must review and reopen any previous claim on an issue if the new claim added service records to your C file. Where I see this happen most often is in PTSD cases involving combat or military sexual trauma. With combat cases-- especially in Vietnam-- VA would fail to get unit records to verify a stressor. In sexual assault cases, VA would get the veteran's service medical records but not the service records, which could show changes in performance. Once these records were added in a subsequent claim then that triggered the original claim to be reopened.

The benefit of this regulation is that it treats the original claim as part of the current one and allows you to submit new evidence, as opposed to the CUE claim where you cannot add evidence.

If the service medical records were considered in the original claim then it looks like CUE is your only route.

Edited June 9, 2015 by Matthew Hill

[Army247]

Thanks Matt. Now I just need help on submitting an effective EED SOC next week. You have been very accommodating. God bless.