Reopened Claims Must Read For Earlier Effective Dates

[pacmanx1]

Once a claim is reopened, a claimant is "entitled to have his/her claim re-adjudicated on the basis of all the evidence of record, both old and new." Bernard VS. Brown, 4 Vet. App. 384, 390 (1993).

So if VA denies a veterans claim then later the veteran reopens his/her claim and the claim is granted. If the veteran can prove that his or her condition reached a certain percentage by medical evidence, the veteran can get a retro payment for the Earlier Effective date but it boils down to the evidence that was in Va's possession at the time of the original claim.

[Guest]

This is one of the things that really sucks. Once BVA grants a claim, BVA will most likely send the claim back to the local VARO to rate the percentage and assign an effective date. If the veteran disagrees with the rating percentage or the effective date then the veteran must file another NOD. Some veterans file a CUE and some veterans file a request for reconsideration which anyone could grant the correct rating or effective date but keep in mind that if the veteran still get a bad rating or effective date. He/she still has one (1) year to file a NOD once the local VARO make their decision.

Also when reviewing a decision granted by BVA, VA the local VARO will most likely try to process that decision and review the entire C-File for that disability. Unless that particular disability is secondary to another service connected condition the veteran should not be worried about VA trying to re-evaluate other service connected conditions. But then again VA is VA and they can do anything they want.

As veterans we must go under the trenches, over the rope wall, through the gas chambers of VA red tape just to get the benefits that our government made for us.

It sucks It sucks It sucks

Hope this helps

[RSG]

Agreed, 46 years of boot...But my CUE was established a 5/7/69 as EED.. It has now been over two months since the local VARO received the decision, and I have heard nothing..

That is what bugs me the most about this deal right now.. I guess the VA can just ignore claims and BVA decisions, until they feel like working on them.. Sure hope I do not have to file Writ or something now....Hope for the best, plan for the worst I guess.....RSG

[deltaj]

I just thought of something horribly significant here. BVA is not an agency of original jurisdiction. There was some sort of court decision awhile back that BVA cannot decide claims which were not decided at a lower level. In other words if you first raised your CUE with them and they decided favorably the decision may be

worthless if the issue of CUE was not decided at regional office first.

Edited June 19, 2015 by deltaj

[Guest]

add

1. Denied claim. The original decision denied list the available service treatment records.

2. In response to my Notice of Disagreement (I mentioned the available SMRs) , the VA sent me a Statement of the case, including the available service treatment records in the evidence section, but continued to deny the clai.

3. I failed to file a VA form 9 and that decision became final.

4. Fast Foward: I decided and sent in a request to reopen my claim. This time, I submitted basically, the exact same evidence, but added what I thought and turned out to be, a strong Nexus and DBQ. The Nexus referred to my available service treatment records. Needless to say, VA again denied my claim.

5. I submitted a notice of disagreement and again received a SOC alon with a VA form 9. I immeidiately completed the form 9 appeal and sent it back with a written rebuttal.

6. VA certified my appeal to the Board of Veterans Appeals (BVA) and it was awarded.

7. My claim was reopened and awarded. In the BVA decisionn, the Judge stated: "Although the majority of the service treatment records are unavailable the the board service treatment records dated between 1993 and 1995 has been associated with the claims file." The Judge decision goes on to say "The Board finds that this evidence weighs in favor of the Veterans contention that he sustain a leg condition in service".

While it is understood that I can file for an EED. My question is do you this that I have a strong case?

Because you submitted a nexus and a DBQ I bet VA will/would try to hold your pants to the fire and say that your claim could not be granted until/without the nexus/ DBQ.

[Guest]

deltaj,

I just thought of something horribly significant here. BVA is not an agency of original jurisdiction. There was some sort of court decision awhile back that BVA cannot decide claims which were not decided at a lower level. In other words if you first raised your CUE with them and they decided favorably the decision may be worthless if the issue of CUE was not decided at regional office first.

A waiver of agency of jurisdiction would solve this dilemma. So I am thinking that either the veteran or his attorney had filed this. I am not really familiar with this claim but it sounds like that is what happened.

[stillhere]

Pete,

My appeal for hearing loss will stand the test of what you have stated as I have evidence in my C-file of it and my SMR while I served and a doctors notation of hearing loss that I showed the judge during my appearance in court. I certainly hope you are right because there was other evidence in my file to support an earlier date

RSG

Sorry it is taking you so long on your retro and word from your RO but I have heard awards like this take a while. How long who knows but I hope soon! Also I might suggest you contact your congress critters to see if they can speed it up for you.

Stillhere