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Would This Be Considered A Cue?


K9MAL

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I followed my VSO's advice in 2002 and didn't file a NOD, due to not wanting the VA to lower my ratings, as he suggested would happen. Fast forward to today and the 2 issues that were denied then were approved this last go around, 12 years later.

If both issues, tinnitus and left knee, are considered to be a CUE then it would bump my old rating of 60% to 70% and the backpay would be greater than $40k. So, I'm very interested in finding out if I should file for a CUE or if the issue is dead in the water.

This is the original decision letter for both issues.

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This is the new decision letter. To me, it's a no brainer. Both issues existed then, were documented, but I was shot down when I should've been approved. However, I'm not too sure when it comes to the whole CUE thing and what's entailed.

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My first impression is that you should file a NOD on the most recent decision, disputing the effective date, assuming that one is in the one year time period.

Importantly is you want an earlier effective date because the VA "reopened your claim" due to new and material evidence.

The regs for N and M evidence are here, see if any of this applies to you:

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:
Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).
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Bronco, unfortunately looks like the veteran missed his NOD time frame by a few weeks/months and he would have to file a CUE if he want to go for the EEDs. My suggestion would be to try to get an attorney to look at it to see where you stand and go from there.

K9MAL when were these decisions made?

Edited by pete992
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My first impression is that you should file a NOD on the most recent decision, disputing the effective date, assuming that one is in the one year time period.

Importantly is you want an earlier effective date because the VA "reopened your claim" due to new and material evidence.

The regs for N and M evidence are here, see if any of this applies to you:

3.156 New and material evidence...

The most recent decision is from February 2014 so I do have time to file a NOD on it. I had a new C&P audio exam, both times were for tinnitus, and the doc looked at my knee but there was no new evidence for the knee.

Can you use a NOD to get an earlier effective date? Or is this a CUE type thing? I really don't know the best way to approach this.

Edited by K9MAL
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