Reconsideration, NOD, CUE or shut up and go away? **Earlier Effective Date**

[DivingBoard]

I am a GW vet 1991
I originally filed a claim in 1997 for:
*Rashes
*Join Pain
*Acute gastroenteritis
*Antisocial Personality Disorder
*Right Knee
*Weight Loss
All denied.
( the records show in their decision that they requested 1 time my private records from 2 hospitals in June of 1998 and as of the date of the denial Aug 1998 no records were recieved... there were several other issues with the duty to assist at that time in 1997, but from things I have recently read, you can NOT win a case for their lacking in their duty to assist as a CUE, even if they had assisted and the outcome would have been manifestly different in my favor, If you know the actual answer to this, please let me know.)  I understand that in 2000 there were new regulations with regard to the duty to assist.
All of my contentions were denied as NWG (Not Well Grounded) Stating that there were no in service records proving that I had these issues. And although they have records from an additional Hospital ( I have no idea whats in those records, they stated that I did not have proof of a CURRENT condition at that time.  ( had they gotten the records in their duty to assist they would have had that proof, and is part of my contention)

Fast forward 2014
I filed a claim for:
*IBS
*Fibro
Both denied stating no in service connection basically and also denied the earlier effective date request ( no reason to approve the EED because denied)

Then 30 days later I sent them a CUE regarding the IBS & Fibro and all the GW Presumptive info I could find, also requesting an EED.
*IBS Approved at 30%
*Fibro Approved at 40%
Earlier Effective Date Denied because I filed in 1997, was denied in 1998 and never filed an NOD or Appeal within 1 year.

Then I filed a claim for:
*Bipolar/et all Awarded 100%
*Sleep Apnea 2ndary to Fibro Awarded 50%
Requested in that the EED for Bipolar/et all Fibro and IBS, was Denied on all 3 as to EED.

Now, I am a the stage of having to file something to try to be successful in being awarded the reto to 97'.

1st claim for IBS in 2014 stated that it was REOPENED (not a new claim) is that a possible thing to point at?
1st claim for Bipolar/et all in 2014 stated REOPENED (not a new claim)  is that a possible thing to point at?

Are there any hail marry's out there? they didnt even respond to or address the things I sent them regarding TL 10-01, presumtive info etc.

And all of the diagnostic codes they have given me are NOT the GW presumptive 88's.

All award letters specifically state a direct service connection.  If 2014 states direct service connection from records that existed while in service how can 1998 state no direct service connection? (different eyes?, something they found that was OVERLOOKED in 97' new and material?)

Not sure what else you mght need from me, but I am happy to reply, thank you all in advance for checking this out to see if you can help.

[Berta]

Duty to assist does not regard CUE claims, which are not really 'claims' at all but a frontal attack on a past unappealed decision.

There are some successful cuers here.

My success grew out of the regulations for CUE...and I studied BVA CUE awards and denials.

You must identify the exact legal error they made in a past decision,and it must involve a condition that was ratable at that time.

Personal example of one of my CUEs.

DIC 1151 award 1998 that husband died due to VA malpractice with primary cause of death (ischemic heart disease) ,never diagnosed or treated by the VA.

Cue filed in 2003 on lack of the heart disease rating. Years of meaningless VA rhetoric and denial, but NOD filed in time.

CUE awarded at a different RO in 2012.

The VA had significant evidence of heart disease from 1988 to 1994 (when my husband died)

All of that evidence was in VA's possession.VA failed to properly rate the veteran's IHD and failed to give it any diagnostic code

The manifested outcome would have been a 50% 1151 IHD rating,which in 2010 I also claimed under the new Nehmer AO regulation, under Footnote one, as to "should have been coded" criteria.

Awarded 50% SC IHD posthumous from 1988 to 1994.(the manifested altered outcome.)

Direct SC under Nehmer and 1151 SC under my CUE.

In our CUE forum it also shows that I filed SMC CUE, HBP CUE and Stroke CUE,

all awarded because of

1. well defined legal error(s)in an unappealed decision (there were 4 legal errors in the 1998 decision)

2. altered outcome manifested to me (meaning they owed me cash due to their errors)

3. all of the medical (and in my case legal) evidence that warranted a proper award was in VA's possession at time of the decision I cued.

 

Edited August 16, 2016 by Berta

[DivingBoard]

3 minutes ago, Berta said:

1. well defined legal error(s)in an unappealed decision (there were 4 legal errors in the 1998 decision)

2. altered outcome manifested to me (meaning they owed me cash due to their errors)

3. all of the medical (and in my case legal) evidence that warranted a proper award was in VA's possession at time of the decision I cued.

Thank you for the info Berta!

Of your 3 at the end...

1) I have yet to find the legal errors (unless they were legally supposed to give me notice to get documents they were unable to obtain) or some other thing i have yet to uncover.

2) I certainly have this part as the outcome would have been an approval and $.

3) the final decisions I have specifically state that they are directly related to service, (service records show) so if they can state they are directly related now, why couldn't they in 97? they only reason that a CURRENT diagnosis has allowed us to award.

If anyone has ideas on what I should do for the NOD, please let me know.  My eyes are crossed reading so many cases and still not finding THE answer.

3 minutes ago, Berta said:

 

 

[broncovet]

My intuitive response is that you should not file CUE, but file a 38 CFR 3.156 (Reopen due to N and M evidence) instead.  

It sounds like they denied based on it not being in your service records, so if you can supply the service records demonstrating entitlement, you should be able to reopen with the effective date per 3.156 C.  

[DivingBoard]

Thank you Broncovet, If I could get a copy of the C-File, I am pretty sure I can go that route with provability. But as of now, no C-file and deadline on the NOD less than 2 weeks.  

[FormerMember]

>>>>>38 CFR 3.303(c)---Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 

Forget the antisocial personality claim. That dog won't hunt. Neither will "weight loss" as a stand alone claim. It isn't considered a disease.

Prior to 2001 or so, you had to have certain things to support a claim. One was a nexus letter from your doctor tying a disease/injury to an event in service. I suspect you had none.  As for VA going to get non-federal records, if the hospital didn't send them, you should have gone and gotten them yourself. VA has no control over civilian records. Most times the hospital or doctor's office want $ to reproduce them for VA. VA will never pay for records- ever. Duty to assist would only apply to military records you identify. Remember this is a two-way street. I don't see much hope in a CUE assault. 

[Berta]

Make sure you file the NOD on time.On August 16th you said you had less then 2 weeks.????

Do the best you can with it.

I just saw your questions in my profile and I cannot help you directly. 

You might be out of time to file the NOD.

You can file a CUE at any time but I suggest reading over all the info in our CUE forum first and also the advice you already received here..