Is this a cue?

[adkins7b]

Ok i'm 100% now as of septermber 2015 but i was wondering my original claim I won sleep apnea and lost depression and anxiety. I filed an apeal for anxiety and depression and also filed a new claim depression anxiety secondary to sleap apnea. well 9 months went by and then they just closed my claim i called they said i had an appeal in for the same thing. I canceled my appeal refiled sleap apnea and depression secondary to sleap apnea and won. I took a break because all this has taken a toll on. me and i had been a 4 year battle because claims use to take 2 years. I think i should of won my original claim, is there anything I can do about this. thanks for all the advice

[broncovet]

I have not read your file, but, based on your post, yes.  I hope Berta will chime in.  You may be treading new ground on an important legal issue.  

The trouble may be, however, by you cancelling the appeal.  Even when a VA employee lies to you, and you base your decision on a VA employee lies, you are still held accountable, but never the VA employee who lied.  If the VA employee were to take the stand, expect him/her to lie again, and say he never told you to withdraw the appeal.  There is almost zero chance the VA employee will ever take the stand against you, in no small part because they do not hold employees accountable.   One thing you could try is reinstating the appeal.  Again, this is new ground to my knowledge.(which is limited).  Berta has a newer VBM and I wonder if it addresses this issue.  

If you have a claim and an appeal for the same thing, and they insist you can only have (1) of these at the same time (not true), then cancel the claim, not the appeal as the appeal will yield an earlier effective date.  They tried this same 3 card monte with me!!!  Fortunately, I was represented by a lawyer and Im an avid hadit/elder and reader,  and I did not take the bait.  

The ruse is the VA is saying, "Gee, you have an appeal and a claim going for the same thing.  This is redundandt and save us some work by withdrawing one of these"....the implication here is that the other will be approved.  I understand completely why you chose to withdraw the appeal and not the claim, because appeals take longer.  But this is an effective date killer.  VA wanted me to "apply AGAIN for a claim the VA failed to adjuticate back in 2004, when I had already brought that issue for appealate review, and the BVA simply ignored it, as it was not adjuticated AGAIN, but denied in a "rating sheet" that Veterans are not privy to until the Veteran receives a copy of the RBA.  I have NOT withdrawn the appeal, so I posit my claim is still pending.  

One way your lawyer may suggest is to simply, as you suggest, CUE the effective date, since you have been awarded benefits.  I dont know if that is the best route to go.  The only way to determine that is to have a great, experienced VA lawyer review your file, and apply the case law to it.  There is much $$ at stake here.  

Your's may well be an interesting and precedent setting case for the VA to not try this farce again.  I hope you get an attorney and make em pay.  

You and your NOVA attorney should review your file, and determine if you should file a CUE, a 3.156 to reopen, and/or both.  

Edited May 31, 2016 by broncovet

[Berta]

Can you scan and attach here the decision that you filed the appeal on? And the date of that decision?

 

(cover your C file # prior to scanning it)

The problem with cancelling an appeal then succeeding on a subsequent claim for the same thing is that they usually always give the re-open date as the EED.

[adkins7b]

I would have to dig for the paper wo.rk but i remember what they said that there was no mention of depression or anxiety in my service record. It was back when claims took 2 years but when i refilled they sent me to an actual cp exam and the doctor found anxiety in my service record but mentioned lightly and said the depression at least likely as not secondary but he stated anxiety was direct service related.. but then they canceled that claim and i canceled my appeal filed again then third doctor said No for everything but i had my own doc write nexus letter to so I guess i had 2 docs say yes and 2 docs say no. I know this is confusing I'm going to get to a lawyer and see because this entire 4 year wait took a toll stressed to mess up to work and not sure i would win. Thanks for help i'm visiting family and wont be home for a while i'll try to upload if you still need to see it

[Buck52]

Some times a reopen claim is the only way, in this vets case I believe I'd do that  even tho you lose EED but since he is at 100%  he has a good chance of a reopen  with new & material  evidence.

if he get a yes decision and being at 100% he should go up to 60% added to his 100% and met the criteria  to SMC-1  & 347.15 a month plus dependents.

like broncovet mention the VA Employee will never be accountable  only if an error has been committed, but in this as the veteran cancel/or withdrew.? who to say they will keep denying ? 

Maybe a good time to seek an attorney?

jmo

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