Somewhere here I posted how to get the VA to CUE itself during the appellate period I have done that many times.since it first worked in around 2005 for me.
I have had success with this tactic but there is no regulation for doing this so maybe some here think I am BSing about it.
That's OK. Today as I started going through VA crapola from 1983 to present, to make sure my file system is up to date, a miserable task, but
good organization gives me great peace of mind and helps ward off VA induced PTSD, when you get so stressed that cannot seem to find a paper document or VA decision that you need, I found a BVA decision I kept regarding the same premise I have filed CUE on-within the appeal period...I used it in my 2012 CUE because it is a legal BVA decision and also cites VA case law such as Grover, so I didnt have to do that.I only needed to cite. 38 CFR 4.6.
.
CUE in the June 1989 rating decision but resolved in 2008. ( the decision is long and there were many other issues as well)
The formal CUE however was rasied in 2006 so this veteran did not do too bad with that issue at all.
The veteran could have used the same reg I have used to possibly get the VA to CUE that 1989 decision, within the appeal period she had.She still won the CUE and the retro but Time is our enemy, not the VA, and she could have also died by the time the BVA awarded that claim. A fact we all must consider.
"The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra."
"In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted. "
Also the decision makes this point that has come up here MANY times:
"Additionally, this analysis is supported by the Court's
holding in McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In
that case, the Court stressed that the date of the medical
evidence itself is irrelevant where an initial service
connection claim is pending. In McGrath, the Board had found
the earliest date that a VA examiner had diagnosed PTSD as
"the date entitlement arose" and used that date, rather
than a much earlier date of receipt of claim, as the
effective date. The Court found error and reversed the
Board. The Court found that the date that the veteran
submitted the claim ultimately controls the effective date
for benefits. Thus, assuming arguendo that an irritable
bowel had first been noted in the medical record on September
7, 1989, where the claim had been pending earlier, and the
later diagnosis supported the claim, the date of the claim or
date released from active service, whichever applies, still
controls the date of benefits. "
Recently the VA pulled this on someone here but I forget who.
"In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted. "
Question
Berta
Somewhere here I posted how to get the VA to CUE itself during the appellate period I have done that many times.since it first worked in around 2005 for me.
I have had success with this tactic but there is no regulation for doing this so maybe some here think I am BSing about it.
That's OK. Today as I started going through VA crapola from 1983 to present, to make sure my file system is up to date, a miserable task, but
good organization gives me great peace of mind and helps ward off VA induced PTSD, when you get so stressed that cannot seem to find a paper document or VA decision that you need, I found a BVA decision I kept regarding the same premise I have filed CUE on-within the appeal period...I used it in my 2012 CUE because it is a legal BVA decision and also cites VA case law such as Grover, so I didnt have to do that.I only needed to cite. 38 CFR 4.6.
.
CUE in the June 1989 rating decision but resolved in 2008. ( the decision is long and there were many other issues as well)
The formal CUE however was rasied in 2006 so this veteran did not do too bad with that issue at all.
The veteran could have used the same reg I have used to possibly get the VA to CUE that 1989 decision, within the appeal period she had.She still won the CUE and the retro but Time is our enemy, not the VA, and she could have also died by the time the BVA awarded that claim. A fact we all must consider.
"The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra."
"In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted. "
http://www.va.gov/vetapp08/Files5/0844495.txt
Also the decision makes this point that has come up here MANY times:
"Additionally, this analysis is supported by the Court's
holding in McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In
that case, the Court stressed that the date of the medical
evidence itself is irrelevant where an initial service
connection claim is pending. In McGrath, the Board had found
the earliest date that a VA examiner had diagnosed PTSD as
"the date entitlement arose" and used that date, rather
than a much earlier date of receipt of claim, as the
effective date. The Court found error and reversed the
Board. The Court found that the date that the veteran
submitted the claim ultimately controls the effective date
for benefits. Thus, assuming arguendo that an irritable
bowel had first been noted in the medical record on September
7, 1989, where the claim had been pending earlier, and the
later diagnosis supported the claim, the date of the claim or
date released from active service, whichever applies, still
controls the date of benefits. "
Recently the VA pulled this on someone here but I forget who.
"In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted. "
http://www.va.gov/vetapp08/Files5/0844495.txt
GRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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