Effective Date Question

[justrluk]

I appealed a decision dated 2008. The decision reiterated that the decision made for a condition filed and granted in 2004 was reduced due to it being pre-existing/aggravating a pre-existing condition. As I understand it, if I win the appeal, the VLJ can decide that the decision rendered in 2004 should NOT have been reduced, thus backing up the date of rating to 2004. I worked this out on a spreadsheet and see that it would have also changed my overall percentage by a 20% increase. If through the C&P, the VA decides that the condition got worse since the appeal was filed (let's say 2010), this would also have changed my rating in 2010. So:

1. If the VLJ decides that the 2004 rating was reduced in error, is 2004 the new effective date for the corrected rating?

2. If the C&P results show that the condition got worse since I filed the appeal, when might the effective date be? Would it be the date of filing, or the date arbitrarily decided by the VLJ, or???

3. If both conditions are granted (error in first decision, then an increase due to the condition getting worse), what then?

As fast as this train is moving, I don't want any surprises. I realize this is all speculation, but would like to at least be prepared for what could happen.

As I understand it, the VLJ can either deny, grant in partial or grant in total the issues on appeal. The VARO has already stated that they cannot change the decision from 2004 (but the VLJ can). So for those that have experienced this, would the VARO grant (if justified) an increase due to the condition getting worse, then hand off back to the VLJ for the rest?

Just confused and moving way too fast to understand what's really happening here.

[john999]

I think if I thought I was taking a CUE to the BVA I would want a lawyer with me. CUE's are really a minefield for the vet. Your CUE must be based on an error in law or regulation with no speculation or reweighing evidence etc. If you make mistakes at BVA they will haunt you all the way to the CAVC and beyond. You already beat the military on the pension question, but the CUE question is sticky and weighed heavily on VA's side IMO. That being said "Go for it".

John

[Berta]

Alex said

"It can never boil down to a disagreement with the way the evidence was decided."

That is correct of course!

BUT, if VA had Probative evidence , that they completely ignored,that is a violation of 38 CFR 4.6....established VA case law which has nothing to do with DTA (Duty to Assist)

That is how I won a CUE in mere weeks in 2011.

I am still Pissed about that.

My husband's main cause of death was Ischemic heart disease with ischemic brain disease contributing.

I filed an AO IHD claim in 2010.

The VA , on Dec 6th, 2011 denied the claim stating that the veteran ( a combat in country Vietnam veteran) showed no evidence of IHD in his SMRs.)

WTF! My husband was a teenager when he was in Vietnam...most of the AO vets were.

How many Vietnam vets had any evidence of IHD in service?

Ridiculous.

I filed a CUE from Hell (widows are tenacious) via Fax and as IRIS complaint , VACO called me up, then got a C & P exam on Dec 22, 2011 to determine the EED for Nehmer) and got my award early January 2012.

The VA had violated not only the presumptive regulations but 38 CFR 4.6.

ASKNOD broke it down in a different way than I usually do.

But the best thing about CUE is to keep it simple.Like they are ten years old.

My NOD on my present CUE situation has been at my RO for over 2 years now.

It was a different RO ( PHila under Nehmer) who, once they overturned the ridiculous denial,

are obviously literate and only made on legal error on my A0 IHD award.

It is worth more retro however than another a CUE I had (4 in one) that they awarded within the Nehmer decision, along with the AO IHD death claim.

I wear many hats every day. I like being busy but have many Have tos as well, farm ,house, church stuff, exercise club, intense bible study program...etc etc

we all have a lot on us to do.

But for a CUE claim I suggest to make sure you take time away from everything else, TV, family, phone and try to just concentrate on the decision you believe contains a CUE.

Dont expect to prepare the CUE the same day. Just make notes on your thoughts and read and re read the CUE regs over and over again.

Put away any stacks of VAOLA you might have on your desk , or any bills, or anything else that might take your mind off the CUE and make a new file solely on the CUE issue.

If you feel overwhelmed, just take a break, even for a day or two.

It amazes me how I can look back at my VA stuff that suddenly years later, looks different.

That happened to me when I filed a DMII AO claim.

But you only need to concentrate on the decision you think is wrong.

The best things that helped me on CUE was the VBM by NVLSP, and reading BVA CUE awards and many BVA CUE denials denials.

The denials taught me a lot about why CUE claims fail.

It could be the percentage and/or the diagnostic code is wrong, or somewhere down the line VA ignored something they had in their possession that was critical to a better award at time of the decision.

As Alex said, CUE rests on established medical evidence at time of the alleged erroneous decision.

I briefly mentioned, on a hadit radio show I did with Dr Bash about a month ago, my pending CUE yourself VA issue.

(A CUE in the 2012 Nehmer award letter)

After the show we talked by phone about some stuff and he asked if I needed his help on that claim. (He did 2 superb IMOs for me in the past)

but after I told him why it was a CUE (they did grant the CUE claim it was based on, but didn't send enough retro)

he realized that no IMO would help because that it had to rest on established medical evidence,in VA's possession ,at time of the decision being Cued.

And the evidence they had was solid.

.

If VA denies on some medical way that would open the door for an IMO ,I will contact him right away.

But I don't expect that to happen.

Cue is not a medical issue , it is a legal one.

I encourage anyone who feels VA committed a CUE to their detriment to consider studying all the CUE info here.

I have noticed ( been checking the BVA since they first came on line many years ago), that more vets in the past few years ,are filing CUE claims.

That doesn't mean they all succeed, but it means vets are getting up to speed on the legal crap we all have to learn, to succeed in claims that have Nothing to even do with CUE.

Once you know basic 38 CFR legal and medical tenets of SC disability, it makes it easier to find a potential CUE in a past decision.

And dont forget, you need to use the regulations that applied at the time of the alleged CUE.

Some disability regulations have changed over the years.

Such as IHD.

My husband had evidence of IHD within his VA medical records after VA employed him.

I already rattled off this story.

VA agreed his deadly IHD was malpracticed on. (FTCA/1151 1997/1998)

They used IHD ratings from 1988 whereby his IHD (no treatment at all from VA) was consistently at a 30 level even though they said it killed him.

I thought they could have done a Fenderson rating, but without any IHD care, I guess that would have been impossible. Maybe .

My point, and I think I have basis for another CUE claim even as I write this thinking about it,

is that the IHD rating schedule at some point changed significantly but AO vets were probably (if Footnote One Nehmer vets) forced into the older IHD ratings for part of their AO IHD retro.

Which is not a CUE.

The schedule of ratings ,at time of the alleged CUE ,can be critical to determining if CUE does exist.

Edited February 7, 2015 by Berta

[FormerMember]

One thing many overlook, Berta, is the ability to win a reopened claim and then file the NOD for the earlier effective date without the trouble of trying to use CUE to attain the earlier date. That's a mouthful, but broken down it simply means that once you have the tenterhooks into it with the win, the whole enchilada is open for inspection simply on the basis of the Evidence of Record (EOR) . All too often, VA leaves a trail of toilet paper out the door and down the steps exhibiting their stupidity. As you so aptly point out, reviewing the EOR is essential to finding the errant thread to unravel the sweater. One misphrased statement in a SOC or SSOC, one incorrect assuption based on lack of the evidence in front of the rater is all it takes to create a flawed rating. Most are not astute enough to discern it.

I spent thirteen years and an eternity thinking they had blown me off. When I won, I began the process you described above. I analyzed every document and came to the decision that it simply wasn't over. I never heard anyone sing-let alone the fat lady.VA stepped on their necktie when they said "Yeppers. We got the new EOR and we'll get back to you". They spent eight years saying "Well, okay. We did say that but you never filed your Form 1-9 so it's a push". VAOPGCPREC 9-97 poked a hole in that argument but they still refused. This is why really big retro payments will always be fought strenuously to the death. Even though there is no evidence that the Excessive Awards Program is still in force, I firmly believe it is merely an uncited footnote to any big retro payment in excess of $100K.

CUE is a tool in the judicial box but so are 3.156(b) and (c ). Choose the right tool for the job and you won't find yourself trying to slot a flathead screwdriver into a Phillips head screw. 38 USC and 38 CFR are like a double-decker box of Whitman's chocolates. There's something in there for every Vet if they have an idea what it is they desire. Resorting to CUE automatically when you find error is not always advisable if there are viable alternatives. Why use dynamite when you can simply open it with the proper key?

I'm inherently lazy so I search for the least time consuming approach. I've also learned to hold off pushing "Print" until I peruse every conceivable argument. It's going to take aeons to accomplish anyway. Why rush the quiche into the oven and run the risk of it falling flat? As LawBob likes to say. You really only get one good shot at this from the outset. Many are consumed with idea of getting that compensation check several months or years sooner. They miss the bigger picture that they will be getting it for life. Until VA starts paying interest on retro, there's simply no reason to rush into it.

clear prop

[justrluk]

Nod,

Thanks for your inputs. I think I have some time this week I can peek through the documents you suggested.