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Gastone

Request for EED CUE Review

Question

I was about to NOD (DRO Review) my 12/2015 Award for an EED.

I called my RO VSO on a different matter but lucked out and got the Rep (Former DRO) that attended my 06/14 DRO Hearing. After discussing the VA Walk-in C-File Viewing Policy, which was the reason for the call, we moved on to the NOD I was about to file for the EED. He recommended filing a Request for an EED CUE Review, saying it would be faster than the DRO Review.

I figured, give it a try, still had till 4/17 based on Award Letter Date, to file the NOD for the DRO Review. Faxed him the 12 EED supporting Pages from my MHV Clinician Notes. He filed the Request 05/13/16, E-Ben showed it the following week, 06/04 it had moved to pending Decision with expected completion dates 06/15 - 07/15.

No matter the Decision, maybe there is something to the VA Request for Review, at least for CUEs. And I still have my NOD DRO Review, Locked & Cocked.

Oh ya, my VSO-Rep confirmed the walk-in RO C-File viewing policy. He said that all Det RO C-Files had been digitized, for our Viewing Enjoyment, no more piles of paper to turn, page by page.

Semper Fi

 

 

 

 

 

 

 

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"He recommended filing a Request for an EED CUE Review, saying it would be faster than the DRO Review."

GREAT. I am so glad vet reps are using this tactic.

If the VA had those MHV clinical reports ( how could they not be in VA's possession)and they were probative, but VA chose to ignore them, that is a CUE violation of my favorite regulation, 38 CFR 4.6.

For some bizarre reason, VA never mentioned all of my husband's shrink records and mental test results,in a denial of his posthumous PTSD claim, and lied about his SSDI solely for PTSD award.

I went right over to the VAMC with the SOC  and caught his shrink just leaving his office and he gave me copies of everything ( 6 MH Tests, significant write ups as to their results,  hypnosis records, etc etc etc and wrote a brief letter to the RO  advising them that he had sent those records to Buffalo already and had seen the SSDI award as well (I brought that with me) that was solely for PTSD.

Within a few weeks ( I sent all of this evidence in again myself with a copy of the letter he wrote to them in response to the SOC) they reversed and awarded 100% SC PTSD P & T with EED Nov 1991, unfortunately the EED was 3 years before he died.The posthumous award came in 1997. The bastards could have resolved it in his lifetime because they had all the evidence they needed.

We have to accept the fact that our evidence is either breezed over or handled by someone who is illiterate.

It has to be explained to them like they are 10 years old.

Some newbee here  recently thought the VA itself would take the time to seek disabilities they could SC in their SMRs and/or VA med recs.

If the VA had to do that, our waiting times  of years would turn into waiting times of decades.

It is our job to claim what we feel is service connectable and then to prove it.And to jump on them fast for any cues they make if they ignore probative evidence that they have.

This is great Gastone and you correctly have the NOD if needed, to be filed in a timely manner.

 

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Okay. Here's the problem. When you win, you have one year to complain on an original claim about any aspect of it-including the EED. If you let the 1 year window expire without filing the NOD for the EED and instead,  file the CUE claim, you may lose the CUE claim and also lose the EED because you did not file the NOD for it. It is a Fenderson decision in the first instance when you go fishing for a EED. You get one shot at it. If you don't file the NOD, you can never litigate the EED any other way than a CUE. Always exhaust the easy remedies and then file the CUE as a last resort. 

You can call CUE anytime. You can only litigate the EED on the appeal of the original claim. You can never ever file in the future for a reopen to reconsider the EED. It's all or nothing when you win. Save the CUE for after you exhaust the possibilities of winning your NOD at the RO or the BVA on Appeal. 

You are throwing away a very good chance to win on appeal just to take a risky shortcut. If you do not desperately need the money, take the appeal route to guarantee a trip to the CAVC if necessary. Never cut off your appeals route for a premature CUE you could file if you lost on appeal. That's a Legal 101 Bozo no no. JMHA.

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Asknod,

Based on your post it seems I made the correct choice. Last year I was SCd 30% for pes cavus w/plantar fasciitis bilateral at 30%.  A few months later I then filed a NOD for EED for same contention dated to 02/06.  I had the C&P exam, and it found the same DX, and a few other issues, as the exam in 2015, with same opinion of likely hood being related to my service.

I wrote that this needs to be my SCD date due to same SMR evidence used to make SC was used back in 2006. The only difference was that 2006 claim was never adjucated.

So if the NOD is denied, I can then go the CUE route...after reading what you wrote, I'm glad I went the regular NOD for EED route first!

Semper Fi

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I definitely agree, never miss filing your timely NOD. As I stated in my above post, the EED NOD is Locked & Cocked. If the VA makes an adverse decision regarding my "Review for CUE," by their indicated 07/16 completion date of the Review, I'll climb on the NOD Train again.

At the worst, I'll have burned 4 months or so waiting to see if the "Review Request" worked. My NOD Deadline per Award Letter Date is 04/17. NOD Reviews are currently taking what, 12 to 16 mos for a Decision, the 4 mos ain't no thing, right.

Semper Fi

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Regardless of what anyone tells you, your NOD suspense date is one year from the date of a denial letter-period. If you have not filed a NOD in that time, the claim is final. In VA claims, there are two different types- original and request for increase. CUE is not a claim. It is a request to revise one of the other two claim paths. I filed in 94 and got denied. I filed my NOD and N&M E. VA sent out a SOC but foolishly acknowledged the N&M E and promised a new decision soon. In 2007, after waiting waaaaaaay too long for it, I reopened it and won 100% right out of the gate but they denied the EED of 94. They said I never filed a Form 1-9 (now a VA Form 9). I filed my new VA 9 and they fought this to the CAVC. Finally, they acknowledged it and paid me. If I had let it go and not appealed it, they could say that again. If I had just CUE'd it, I had no assurance that claim would be revised. I did have the assurance I could win via appeal because it was an original claim regardless of how many times I reopened it. The error occurred in 1994 and the claim was still open. Always attack on that facet first. CUE can be argued numerous times and with numerous filings but each must be predicated on a new theory. Revising an old decision is infinitely harder than doggedly pursuing the appeal route. VA is often more inclined to eventually see it your way on an appeal-especially with an attorney arguing your case. With CUE, it's like flipping a double-headed coin and VA always gets to call heads. The rate of CUE approved, regardless of Berta's and my success, is abysmally low. That is because it has to be as obvious to everyone as white on rice. If you don't know what you're doing, you'll never prevail. Even if you do, it's still a dicey situation as to whether you'll prevail or not. Appeals with merit will always win with a nexus/IMO. Submitting a new IMO at the BVA with no review at the local RO level is the latest craze for a guaranteed win. The backlog is so tremendous, the VLJs are simply granting them to clear out the backlog.

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