Would This Be Considered A Cue?

[K9MAL]

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.

[carlie]

I need to get my C file to determine this... But, my NOD timeframe runs out in February and I doubt I can get it by then. So, would that mean the only route feasible is a CUE if they did in fact screw up on the original determination? I think it may be lawyer time with this one.

Thank you again to everyone!

You have time to form a wonderful NOD.

[broncovet]

YOu may not have time to get your cfile, but, you should be able to get your medical records at your VAMC well before February. Regarding your effective date there are 2 issues (but there are several exceptions to this general rule on effective dates) :

1. When did you file? (Hopefully you can find that out).

2. When did the doc say you were disabled?

Your effective date will be the later of 1 and 2, above. You can read your medical records and see when the doc said you were disabled. Hopefully you know what date you filed and the VA has notice you filed. Its gonna be hard for the Va to dispute when you filed, when your 2002 decision acknowledges you filed by then. How can they dispute their own decision?

Edited November 5, 2014 by broncovet

[broncovet]

There are at least 4 exceptions to the general rules, above, for effective dates:

1. Informal claims. You can read up on what constitutes an informal claim and whether it could yield an EED.

2. New and material evidence. If you submit new and material evidence, this can have the effect of filing a NOD if its within a year of the decision. See 38 CFR 3.156. Dont count on this for filing a NOD, but, if you do submit new evidence, the VA has to consider this evidence and it can apply to the pending claim for effective date purposes. There is much on this topic.

3. If you just got out of service and applied for benefits within a year. (Your effective date would be date of discharge).

4.

[broncovet]

Probably the best information on effective dates is here:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

[Berta]

to add

Are these the contentions you are still fighting over:

Did you file a CUE on the tinnitus EED?

Have you gotten by now all of your Military records, your VA med recs and a copy of your C file?

If the tinnitus was ratable at 10% in the older denial, then that was, in my opinion, a CUE.

[K9MAL]

Are these the contentions you are still fighting over:

Did you file a CUE on the tinnitus EED?

Have you gotten by now all of your Military records, your VA med recs and a copy of your C file?

If the tinnitus was ratable at 10% in the older denial, then that was, in my opinion, a CUE.

I actually filed a NOD for EED at this point. I think it's gonna get shot down but then I'll move on to the next level.

I'm pretty ticked at this point. They don't even consider the evidence right in front of their faces... I'm determined to win.