Should I file a CUE or leave NOD in place?

[ADodge]

I have reposted this because originally I had posted it under someone else's question and I was asked to repost under a new topic.  Simply because I might get more answers and also there might be other VETs out there with a similar situation who could benefit from the advice given.

 I hope I am not repeating someone else's question.  This is not at all easy to understand.  So I'll just ask.  I was discharged in 1984 from the Navy.  I had married an active duty Navy enlisted and so my health care was still at the same base I was discharged from.  After 3 months post discharge the Doctor that was handling my health care suggested I file a claim for Asthma service connected.  Because when I joined the Service in 1980 I did not have Asthma but when I was discharged I was being treated for Asthma.  So I filed the Claim in December if 1984.  I was discharged the last day of March 1984.  And my discharge was honorable so no problem there.  The initial claim was that I filed was for Bronchial Asthma service connected. and it was denied in 1985. I didn't appeal it because back then I didn't know anything about appealing the denial and just figured that was it.  The denial stated THE EVIDENCE DOES NOT ESTABLISH SERVICE CONNECTION FOR THE FOLLOWING BRONCHIAL ASTHMA DUE TO ALLERGY.  Bronchial Asthma denied. (Funny that is what causes Asthma Allergies.  but god knows I grew up on a farm and never had any problems with allergies at least not so much as to cause me a problem with breathing.  And I had never been diagnosed with any allergies either before entering the service.)  Anyway time passed and I forgot all about this claim.  in 1997 I began receiving SSDI and part of my disability was the Asthma and by then I also had COPD.  More time passed and in 2014 the VSO in the town I live in suggested I file a claim with the VA for service connected disability for asthma. So I did.  And after again submitting to PFTs done by the VA I was approved at 60%.  Now I would never have questioned anything after that except that when I filed for the COPD and a few other items I was told that my representative was the DAV.  And I asked why was the DAV my representative and who in the DAV was.  And I was told told that back in 1984 I picked the DAV to represent me.  And I said "  I did???  Why would I do that?  and that response was "because you filed a claim back then.  That was when I thought SHIT I need to get a copy of all my records.  SO I finally did and that is when I learned and remember filing that claim.    So Here is my question.  Since Nothing except the severity of the Asthma has changed since 1984.  Would that initial claim be a CUE?   Wouldn't it be right to file a CUE regarding that claim so that the effective date of the current claim would date back to 1984?   Currently I have a NOD filed regarding the effective date.  But I really feel it is a CUE.  Is that right or not?    And if someone does answer this could you answer like you are explain this shit to a two year old!!!! LMAO  because All of this is just so Damn confusing to me!!!   

Thanks a lot,    

 

I was asked to scan and post some VA C&P reports and I will do that as soon as I get back from meeting with my Local Congressman.  I will keep you all in mind as I ask him about doing the back up of VET Appeals!!! And other Veteran topics!!! 

Aileen

 

SO this is what Bertha asked in response to my previous post of this Question:  

Did you or the rep specifically state "Due to Allergy" on the claim?

Do your SMRs reveal you did, in fact develop allergies in the military?

Can you scan and attach here their reasons and bases for the 1984 claim denial and the evidence they used?

Obviously, with the successful outcome of the 2014 claim for the asthma , the VA certainly considered your SMRs but it seems they missed something in the older denial....so maybe this would even by a 38 CFR 3.156 claim.

I know it is confusing but if we can see the older decision (and we might need the newer one too) we can determine whether there is cause for potentially more retro due to a better  EED.

Did the 2014 claim state the asthma was 'due to' allergies?

Cover C file number, name, address, prior to scanning and attaching it here.

I focused on the 'due to ' part because statements like that can lock us in to one theory of entitlement when other theories could be 'due to exposure to chemicals, via your MOS etc etc.

So Here is what I have but I also have this very strange 600 form that was placed in my medical record at the end of my in-active reserve time.  Notice the date Apr 8 86  See all the things it list that I am suppose to be allergic to.  Well if I had been allergic to all those things before I joined the Navy I would never have been able to join the Navy because I would have died as a child.  Considering I grew up on a Farm!!!!  I mean WTF who the hell is this Captain English and why is he putting this document in my Military medical record years after my discharge????  I don't understand!!!! This is way too screwy!!! 

Edited May 7, 2016 by ADodge
remov files

[broncovet]

Berta often says that, to qualify for a position as a Rater, you have to fail a reading test.  They did not read my evidence either.

I have discussed this earlier, but this is the way I see it:

1.  If your decision is within a year, then file a Nod, not a cue.  It helps when you understand that CUE is a "standard of review".  Benefit of the doubt goes out the window with CUE.  

2. If you submitted new evidence WITHIN A YEAR OF THE DECIsion, then, if/when benefits are awarded, it should go back to the beginning of the appeal period.  For more reading, read about "pending claim doctrine".  

In general, this is how I recommend:

1.  Timely file a NOD.  If the decision is past one year, then do not file a NOD, but look back at your records and see if you submitted new evidence and when.  

2.  If you submitted new evidence then that claim remains pending, until its adjuticated.  VA has to issue a decision, on whether or not you submitted new evidence or the claim remains pending.  

3.  The last ditch try is to file a CUE.  (Berta has, however, had good luck asking VA to cue themeselves, BUT we all caution even if you do file a cue, still file a nod before the one year period.   Cue is the "highest standard of Review" and it must be undebatable.  Since there is no time limit to file a Cue, you need not rush.  Berta mentioned this earlier...NO, Cue is not a one shot deal.  There can be multiple errors in your decision and one or more may be cue.  If you motor goes out, this does not mean the transmission  is in good shape!

[syne7]

11 hours ago, broncovet said:

I have discussed this earlier, but this is the way I see it:

1.  If your decision is within a year, then file a Nod, not a cue.  It helps when you understand that CUE is a "standard of review".  Benefit of the doubt goes out the window with CUE.  

2. If you submitted new evidence WITHIN A YEAR OF THE DECIsion, then, if/when benefits are awarded, it should go back to the beginning of the appeal period.  For more reading, read about "pending claim doctrine".  

The only issue I see with this is that a claim initiated a year ago can only have an effective date of the beginning of the intent to file.  As the the claim was awarded as of that date, I am not sure what NOD will do. 

The problem is the issue isn't with the current claim.  The current claim was won.  No one disputing the rating.... not one is even disputing the award.  What is being said here is, "my other claim from over 20 years ago should have been approved.".  I don't believe this issue can be addressed with a NOD on the most recent claim.  I think this would simply was just eat time.

I would suggest exploring the CUE which is the only way to adjust a final decision and earlier effective dates (EED) are the easiest to CUE.  I just had two cue'ed EEDs from 5/11/98 back to 5/11/97.  I didn't even have to file anything as soon as they were pointed out they were fixed by them.

In my uneducated opinion, I would suggest filling a CUE stating the following (simple overview):

Clearly the there was a CUE here as the my recent claim was awarded with no new evidence.  Thus if the evidence was sufficient now, it was certainly sufficient then.

Given the time frame and potential award.  I would consider a lawyer/advocate like John Dorle.

This could be substantial retro.

Just my thoughts.

[broncovet]

When you get a decision, you can dispute the effective date with a NOD, arguing it should have been awarded earlier, for reasons you gave above.  

[broncovet]

Filing a NOD on the new decision, disputing the effective date gives you more options.  

Since there is no time limit on CUE, you can still cue that if your NOD on the effective date is denied.  However, if you file only a cue on the old decision and you pass the one year period, its possible or even likely your cue fails as your issue is not undebatable, and you dont get the BOD.  

I see no reason to burn your 1 year appeal period at this time.  You can chase the cue later, or even chase the cue at the same time you file the nod.  

[syne7]

2 hours ago, broncovet said:

Filing a NOD on the new decision, disputing the effective date gives you more options.  

Since there is no time limit on CUE, you can still cue that if your NOD on the effective date is denied.  However, if you file only a cue on the old decision and you pass the one year period, its possible or even likely your cue fails as your issue is not undebatable, and you dont get the BOD.  

I see no reason to burn your 1 year appeal period at this time.  You can chase the cue later, or even chase the cue at the same time you file the nod.  

Perhaps, I don't understand what I've read regarding NODs & CUEs.  If I may let me provide my real life example to better explore you point and make sure I understand correctly.

Here is my real-life example.  I exited the Army in 1997, with a medical discharge.  I half-heartedly participated in the process and was given 0% for range of motion, left ankle, and 10% for Asthma.  I claimed residuals of fractures for for both feet, which were denied service connection.  I claimed nothing else.

Fast forward to today.  I looked in my C-file and noticed that my entrance and exit hearing exams showed quite a bit of hearing loss.  I have hearing exams in the that show STS loss, declare "works in hazardous noise environment" and the exit exam shows on score above 40 db, which is hearing loss by definition (likely 0%).

If I file a claim to day, they go on C&P Exam next month, and am then rated at 0% back to today are you suggesting that I could file and NOD stating the effective data should be 1997 even though I did not file a claim back then?

I believe this situation to be analogous to the example we are discussing because even though there was a claim in the 80's... A NOD was never filed for it, and it become final.

I am not trying to be confrontational.  I am merely trying to better understand the process.

I also suspect this may be a moot point, if one files a NOD alleging the incorrect data based on an error.  They make take that as a CUE request and process it that way anyway?

 

[Guest]

Your scenario is way off target and in a matter of facts you are not even hitting the target. Using your scenario say you filed a claim in 1997 and was given 0% for range of motion, left ankle, and 10% for Asthma and you did not appeal. Now fast forward to today and you requested a copy of your C-File and you opened an increase in your claims and VA gave you a C & P exam and then granted you 60% for asthmas and 40% for your ankle. (These examples are just hypothetical) but when you reviewed your C-File you found evidence in your records that showed the exact condition as your current C & P exam but VA failed to use this evidence. It was not listed in the evidence used to determine their (VA) decision. So since you just got a decision the best thing to do is to file a NOD not a CUE. Yes, a veteran can file a CUE but when a veteran files a CUE the veteran is giving up BOD (Benefit Of Doubt). Also and very, very important is that a CUE claim has a higher threshold for veterans to overcome. In order to file a CUE claim a veteran must have already filed an earlier claim. The point of filing a CUE claim is to get lost money. If you were granted 0% today and if VA back dated it to 1997 it would still not get you any money. The highlighted portion will kill more than 95 % of all CUE Claims. CUE claims can be filed at anytime but NOD claims must be filed within one year of a decision. Using the newly found records, you could ask for an EED because your records proves that if VA had reviewed your complete records you should have been awarded these benefits in 1997. I hope this help and not confuse you.

20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

                        

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed—

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error—

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed -

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error -

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

 

Edited May 13, 2016 by pete992