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Early Effective Date

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Fat

Question

Filed for a bi lateral knee condition in early 2001, late 2000.

The claim was denied and I didn't file a NOD.

In 2009, I filed another claim for right knee condition.

Should have been evaluated for service connection due to "aggravation of preexisting injury".

Tore the patellar tendon in the 9th grade.

Claim was denied (no report of injury or incident in service records) and NOD filed.

NOD was denied (I doubt they looked at my entrance exam citing knee issue) and FORM 9 filed.

I am currently awaiting for the BVA to hear the issue.

If the BVA grants service connection, can I file a NOD for the earlier effective date in 2001?

Or would I have to reopen the 2001 claim and if that's granted, then file a NOD for the earlier effective date of 2001?

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  • HadIt.com Elder

Excellent Question Fat.

I was wondering as we all gain knowledge about the claims process over the years is it possible to go back and catch errors that were made after the claim is closed? say go back 15 years or so? or would it be worth the trouble?

Mostly about EED Dates?

.................Buck

Edited by Buck52
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Yes, you can file a NOD at that time (within a year of the RO decision), disputing the effective date.

Whether you will win or not, largely depends on you, and your evidence. You need to:

1. File the NOD timely.

2. Identify an error in the decision, and communicate that error effectively in your NOD/evidence in support of NOD, supplying compelling evidence to back it up.

3. Comply with the rest of VA's regulations, such as filing the I9.

4. Not give up.

Edited by broncovet
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Please understand that CUE is a "standard of review". Dont think of it as "error", but as a standard of review. You see, when you file a traditional appeal (and win), this means the original decision had "error" also. So both traditional appeals and CUE have "error".

What seperates them is the "standard of review":

Standard of review for traditional BVA appeal:

1. Veteran gets "benefit of the doubt". (BOD) He does not have to prove "preponderance of evidence".

2. If laws change, the Veteran gets "the more favorable" of the 2 laws.

3. Veteran must file NOD within 12 months of decision. (for RO decisions)

Standard of review for CUE:

1. NO BOD.

2. Error must be "undebateable" which is even higher than preponderance of evidence.

3. Error MUST be "outcome determinative". "Harmless" error means Cue is denied.

4. Error must involve regualtions "at the time of decision" so a new liberalizing law wont help you.

5. Veteran may file CUE at any time.

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Buck.

I was not trying to be critical of your response! In fact, I appreciate your responses.

Fat is apparently waiting for his claim to be decided at the BVA. I would humbly suggest he wait for the outcome to decide if he wants to file a CUE, reminding him that BVA decisions are also appealable.

In fact, some lawyers want a BVA denial letter before they agree to represent you. You can send the BVA denial to the attorney and he can usually pick it apart and tell you what is wrong with it.

As an example, NVLSP required I send them my BVA denial before they would consider representing me. There it was. An inadequate "Reasons and bases" was in black and white. This means NVLSP is "virtually guarnteed" a remand, and EAJA fees. By picking their cases like this, they can keep their "win/loss" ratio above 90%.

While I agree, Fat, the wait is often excrutiatingly painful its so long, we really have no choice but to wait.

However, if you need to occupy your time, then you can create "hypothetical" BVA decisions and decide what to do in each hypothetical instance, such as filing a CUE for the effective date. I would rather go fishing, myself.

The CAVC adopts a "case or controversy" approach, and they do not adjuticate "hypothetical" situations. Example: You file a Writ of Mandamus, compelling the RO to implement an old Board decision. The VA says, "Gee, we did not implement that..lets keep the judge off our case, and quickly send the Veteran an implementing decision".

Boom. The VA then asks the judge to dismiss the case, as there no longer is a controversy..the BVA decision has been implemented. The judge wont "go ahead and decide the case on its merits anyway", but instead disposes of the case by dismissing it as moot. No controversey=no case.

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How long do we have to file an EED? It never occured to me, not then and only just recently now, that when my original claim for my knees was denied, and then finally accepted as SC 18 months later, that I could have filed for EED. I originally filed in July of '98, before my EAS of Nov of '98. I was SC for 3 contentions from that original group dated as SCD 11/98. But my knees were originally denied, then finally SC in 08/2000. I realize now that I could have and should have filed for EED then. Can I still do that, or is it too late?

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