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If The Ro Cues Itself...


free_spirit_etc

Question

I have read some posts in here about the RO CUEing itself.

I also read sometime somewhere in the M21 that if a claim had a clear and unmistakable error --the RO should correct the error.

So if you reopen a claim --and point out a significant error made in the adjudication of the original claim (especially failure to adjudicate it at all......but also other errors)

AND the RO acts on that error --and adjudicates it...(or corrects whatever error you point out...

Would that have the effect of possibly arguing for the effective date should go to the original date of the claim?

If the claim was not still pending as unadjudciated because they denied another part of the claim -- but then act on your request to correct their error.... would this revise their original NONdecision?

Case scenario

File claim >> part of claim denied>>part of claim ignored.

Reopen claim >>ask RO to correct error of not adjudicating the part of the orginal claim that they ignored.

If the RO CORRECTS that error by adjudicating it --then could that be a basis not for a CUE (since they corrected the error) but for an earlier effective date based on the original date of the claim for which they corrected the error?

Free

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  • HadIt.com Elder

If the VA did not decide a claim, that is not a CUE, the claim is simply still an open issue. Once the claim is decided the VA will apply the effective date of the original date of the claim.

So if you reopen a claim --and point out a significant error made in the adjudication of the original claim (especially failure to adjudicate it at all......but also other errors)

There is nothing to re-open (in regrds to the undecided claim). As I stated before the undecided issue is still open. As far as other errors in the ratings of other issues that were decided, it all depends what 'errors' you mean. Are you still within the one year time frame of the original decision? If so, just submit a NOD. If not, those "errors'' must be a matter of law in order to warrent CUE. A judgement call on the rater's part is not CUE! To re-open a previuos denied claim that has become final, you must submit "New and Material" evidence in order for the VA to re-open the matter.

I think you're making this more difficult than it really is.

For example, let's say you claimed a right knee condition, lower back, upper back , and PTSD on 1 Jan. 2005. The VA came back and denied the right knee, rated the lower back at 40% and PTSD at 30% on 1 Oct 2005, but never mentioned the upper back. The upper back is still an open issue and the VA must make a deterination on that issue. The effective date of the upper back is still 1 January, 2005 regardless of when the VA makes a decision on that claim. In regards to the denied knee claim, the one year appeals period has already passed and in order for the VA to re-open the claim you must, as I stated above, submit "new and Material" evidence. Once you submit "New and Material" evidence and if the VA grants the claim on those evidence, the effective date would be the date you re-opened the claim. The only way you can obtain the original effective date for the knee is to prove that the VA committed CUE.

Vike 17

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Vike, very good point. Vike and Berta, what is your opinion of this scenario? A cue is the hardest thing to prove. But it can and is often done. Take this example. A Vet applies for SC for hypertension and Migraine headaches. The RO denies the claim because Service records were not available. The Vet does not appeal. Then the Vet files another claim years down the road and the Service records are received. The Vet notices the Service record is received and immediatly files to reopen the Original claim for Hypertension and Migraines and sends the post service medical records to the VA which include a Diagnosis and Hypertensive readings that are compensable The Ro again denies the claim because no new and material evidence was submitted and the service medical record was void of any treatment or complaints of both issues.

The Appeal statement of case rebuts the former denial for saying the Vet was actually treated for Hypertension and Migraine headaches in service. Still, no new and material evidence.

The Vet is granted Service connection for another disability 5 years later and during a C@P Examination, He notices the Service record. The Service record reflects the Veteran had 7 BP readings taken over 4 years and 5 out of the 7 were high as well as 4 of them were compensable. He is also awarded SC for Hypertension and Migraine Headaches down the road.

The CUE was this: The ro failed to use the correct procedures in the title 38. 3.156. Failed to apply the regulations for the Service Record was newly received and the information listed in along with the Post service ( Within 1 year of discharge) which would have changed the outcome of the claim.

Edited by jstacy (see edit history)
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Interesting scenario-

I think the CUE outcome would depend on the date of the claim being cued.The limiting date of Bell is July 21, 1992.

Because-in Bell V Derwinski- the Constructive Notice Rule comes into play-

http://72.14.205.104/search?q=cache:NIzab3...=2&ie=UTF-8

OG Pres Op # 12-95

"2. In Bell, the Court of Veterans Appeals held that medical records concerning a claimant which are in VA’s possession at the time VA adjudicators render a decision on a claim will be considered to be evidence which was in the record before the adjudicators at the time of the decision, regardless of whether such records were actually before the adjudicators at the time of the decision. The court’s decision was based on the principle that VA adjudicators are deemed to have constructive notice of all medical records in VA’s possession, whether or not they have actual notice of such records. The decision in Bell was made in the context of a determination as to whether records which were in VA’s possession, but were not actually in the record before the AOJ or Board, could be considered part of the record on appeal to the Court of Veterans Appeals for purposes of 38 U.S.C. § 7252(B), which limits the court’s review to “the record of proceedings before the Secretary and the Board.”

3. In Damrel v. Brown, 6 Vet. App. 242 (1992), the court indicated that the constructive-notice rule of Bell may also be applicable in determining the content of the record before an AOJ in a prior final adjudication for purposes of clear-and-unmistakable-error determinations under 38 C.F.R. § 3.105(a). The claimant in Damrel had been evaluated by VA as totally disabled for insurance purposes since 1966, but evidence of that evaluation apparently was not considered by the AOJ in 1967 in evaluating his claim of total disability for compensation purposes. The claimant asserted that the AOJ committed clear and unmistakable error in 1967 by failing to award a total disability rating based upon the evidence of his VA evaluation for insurance purposes. The Court stated that, under the constructive-notice rule in Bell, the AOJ would ordinarily be deemed to have constructive knowledge of the

VA insurance records. However, the court held that the con-

structive-notice rule was first announced in Bell and was not applicable to decisions rendered prior to the issuance of the Bell opinion. Accordingly, the court held that the AOJ’s failure in 1967 to consider evidence of the claimant’s evaluation for VA insurance purposes could not constitute clear and unmistakable error, because such evidence was not actually before the AOJ in 1967 and could not be deemed to have been before the AOJ under the constructive-notice rule in Bell. "

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Berta, The original claim wasd filed in 1994 and denied in 1995, reopened in 98, denied again late99, Nod sent 99 . SSOC was issued in late 2000, after the VCAA. In this case what do you think?

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