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Recondo@53

Possible CUE - Need Advice

Question

Hello,

I have a question on a possible CUE. I completed a FDC within one year of starting it. In that one year timeframe, my now terminated VSO, also filed an intent to file(s) with out my authorizations. Now, § 3.155 gives clear guidance from the secretary that the VA will not recognize more than one intent to file for the same benefit. On completion of my FDC on Ebenefits, the RO combined both claims 08/06/2015. My FDC was started 09/04/2014 and completed 08/05/2015. Also, my FDC falls within a year of getting released from active duty service. The VSO submitted intent to file(s) dated 05/12/2015, 05/30/2015, and again 06/05/2015. ALL WITHOUT MY AUTHORIZATION and all overlapping my intent to file already in Ebenefits. I was granted service connection for a few disabilities, but the RO made my effective date of 08/05/2015.

1. RO clearly never followed  § 3.155.

2. § 3.4 (b) states effective dates for direct service connection are day following separation from active service.

3. Shouldn't my effective date be the day following release from active service? Which would be 10/01/2013.(release from service was 09/30/2013)

4. Is this grounds for CUE?

5. I have not submitted my NOD yet. Do I need to submit NOD and wait on CUE after Statement of Case?

 

Thank you so much for your help!

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What did VA say as to the EED they picked?

Did the decision acknowledge the initial claim date at all?

Can you scan and attach here ( cover C file # ,Name prior to scanning) the Reasons and Bases and the Evidence list they used?

I agree with you that something sure seems wrong here.

Do you have a copy of the original FDC you filed?

PS...nice to see a new member here who has done their legal homework!

Unfortunately many vets never question some of this stuff , as you did, and VA takes advantage of us that way.

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I forgot to add...you might well have a basis to ask them to CUE themselves.

It is my favorite tactic.I have filed multiple CUEs on decisions prior to filing a NOD and have succeeded with them. All explained in our CUE forum.

I even won a CUE on BOD regs because they failed to even extend those regs to me in one decision. The RO Director called me up to apologize for that one.

If we can read their Reasons and Bases and Evidence list, it will reveal how that can be done,if they erred in the decision.

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IMG_4661.thumb.JPG.a8101489750eceee55160Thank you for your response, Berta. What also was strange was the fact that I got an original decision letter dated 10/14/2015, with a disability deferred. In the decision letter 10/14/2015 it states, " VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation Benefits received 08/05/2015. This claim was initiated on September 13, 2014 for dermatitis, sleep apnea, GW diagnosed illness and unexplained chronic multi-symptom illness, and increase for chronic sinusitis. Therefore, the date of claim for these issues will be September 13, 2014. I have attached a picture for review. Before decision, I had sent a statement that they were incorrect in combining both intent to files. I also informed them that my FDC was within one year of active duty release. I have attached that as well. What bothers me is that my attorney didn't catch this...

I love how they get away with the low rating for "systemic" therapy use for eczematous dermatitis. The steroid cream I use is more dangerous than the pill medications they prescribe, yet if on pills I would possibly merit a higher rating. Also, I have NODS in for previous fully developed claims that they included in this decision letter. It seems fishy and FUBAR.

Thanks for your service and kindness in helping me. 

 

IMG_4669.JPG

09 04 2014 claims date letter of error_Redacted.pdf

Edited by Recondo@53
Added an additional file

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At the bottom of this article it states:

"Again, once you initiate your claim via the Fully Developed Claim program, you have a year to complete it. If your claim is successful, the VA will pay benefits retroactively to the date you initiated your claim."

http://www.militaryauthority.com/benefits/veterans-benefits/vas-fully-developed-claim-program-allows-for-retroactive-payment-of-disability-benefits.html

There is another link that hopefully contains the actual regulation on that.

I agree with you that the effective date is wrong but I hope others chime in here too on that.

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Thanks for your response again, Berta. The article isn't matching up with "whole picture" of CFR with regard to Direct Service Connection. Yes, I hope more will chime in because something is clearly going on. I really appreciate the site and glad I found it!

§3.400 General.

 

            Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  (Authority: 38 U.S.C. 5110(a))

 

(2) Disability compensation:

 

                                    (i) Direct service connection (§3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

 

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