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Earlier Effective Date?


john999

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  • HadIt.com Elder

I filed a claim for an increase from 30% to a higher rating back in 1996 before I started using Hadit. I got the increase finally in 2002 to 70% after a trip to the BVA where my claim was denied. In late 2001 I submitted new and powerful evidence and was granted the 70%. In meantime I had claimed TDIU. I continued to appeal and got TDIU in late 2002 and then on appeal P&T in 2003. The claim for increase was constantly on appea from 1996l until I got P&T in 2003 and then I let it rest.

Thinking about this I believe my effective date should have been the date I filed for the original increase which was in 1996. The VA says the 70% grant and all the other grants were based on the new evidence I supplied in 2002. Is this a possible error on the VA's part. I now that in other claims they even used the date of my C&P exam as the effective date which is all wrong. I am thinking of the difference between 30% and 70% for a period of almost 5 years which comes to a stout pile of cash.

John

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John is the VA had the same evidence in 1996 that garnered the 70 % award, then you might well have a basis under CUE.

CUEs involve what I call the Watergate question:

what did they know and when did they know it.......

My CUE on a1998 decision involved that fact that the medical evidence had been estabished and was on the rating sheet.

They knew my husband was eligible for SMC consideration

and their 1998 rating sheet supported that.

If they knew ( had evidence of in 1996) you should have been rated at 70% , and lowballed you, that could definitely be a CUE.

I think every vet who had been denied in the past but eventually succeeds on getting a SC rating on the same disability,should look over the past denials for evidence of CUE.

It just makes sense, even if it results in an award with a Fenderson rating.(staged rating) like maybe up to 50% and then to 70% .

The medical evidence for CUE must be established already by the VA in the decision being Cued and the evidence must have been in VA's possession at time of alleged CUE.

I mentioned here the other day for my pending CUE, one piece of evidence was a letter sent to my husband from the Under Secretary of VA at that time.( 1993)

It seemed just like VA BS at the time, but

I always saved it and it is now very probative to my pending CUE., and although it was not in his RO records, it was in VA's possession at VA Central when the Under Sec (RJ Vogel)wrote and signed it.

I hope others chime in here.....

Every vet should try to have a good idea of what a CUE claim is.
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  • HadIt.com Elder

Berta

I submitted new evidence in 2001-2002 including letters from 2 doctors, evidence of being approved for SSDI and rejection by Voc Rehab. I was fired from my long time job in 2001, so I went into overdrive. The VA based the 70% rating on all that evidence. I got even more evidence and continued on until I got TDIU P&T. When I was out of work and disabled at age 51, I experienced the sort of fear that rockets you to take any and all action to win your claim now. So I guess since the VA based their decision on the new evidence I submitted I am stuck with 2001 effective date? I was low balled for so many years. I just did not understand what it would take to get a higher rating than 30% because I was still able to work even if it was light duty for the rest of my days. I was on limited/light duty for about 5 years during the time I was appealing the denial of a rating greater than 30%.

John

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  • HadIt.com Elder

My husband's representative, a national service officer from DAV, managed to get him an earlier effective date by filing a notice of disagreement with a decision and pointing out that V.A. had erred under 38 CFR 3.400 (q) and 38 CFR 3.156 in failing to consider that his claim for increase had been in continuous prosecution since a specific date. That regulation 38 CFR 3.400 (q) (1) or 38 CFR 3.400 (q) (2) [sorry, my memory is bad] has since been changed. The version of 38 CFR 3.400 (q) in effect at the time of your rating decisions needs to be reviewed by you Somewhere on hadit I provided information on what the wording of that notice of disagreement on CUE stated.

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Delta, Good to see you here again!

I won my SMC CUE since you were here last......

by using their regs against them and also we have had MANY discussions here on 38 CFR 3.156 , a great reg that all need knowledge of.

I also got them to CUE themselves during the appeal period prior to filing my NOD when they violated 38 CFR 4.6 and have another GCY claim currently

(GCY ......... Go Cue Yourself VA :tongue: )

You were such an asset to hadit and I hope you stay with us now from time to time!

Hope all is well with you too.

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Early effective dates.pdf

this is something I found on BVA sight that has some good reading

for those that don't know about Cue claims and 1151 and early effective dates

should read this. Bertha, carlie, if you have post this sorry because most may

already know but its long and cover a lot of TDIU claims &EED laws and regulations

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