Nod Sent Months Ago

[Angela]

I filed a CUE (clear and unmistakable error) claim last year, which was quickly denied. I've already sent in my NOD (notice of disagreement) - about 6 months ago - but haven't gotten a statement of case yet.

In my CUE I pointed out that the RO had incorrectly interpreted the diagnostic code criteria when rating my condition. I supported my argument with previous decisions of the BVA that spelled out how the criteria was to be interpreted and applied. Then I pointed out that the supreme court (in Gardner) ruled that veteran's are entitled to the most advantageous interpretation of ambiguous rules.

Since then I discovered (by reading the Nicholson v Smith - 2006 FedCir decision) that since the VA has previously provided a publicly available (via bva's decision website) interpretation of my diagnostic code, I was entitled to application of that interpretation -under the Chevron standard of statutory interpretation.

My question is... Can I still submit this additional argument to support my NOD?

[LarryJ]

sure

[Berta]

Larry is Correct-

(By the way Larry -a picture of Red Cloud is on my PC-he was part of our USMC warfare studies at school-it is amazing the warfare knowledge one gets that can be applied to VA claims)

Angela- a vet can send evidence right up to the very minute a BVA lawyer puts pen in hand to sign off-

You sound like that CUE was dynamite- I love the evidence you used-

they denied a CUE I filed in 2004 but I immediately asked for reconsideration and sent them more VA case law and their own regs in M21-1 that pertain to my CUE issue. They told me they began working on the CUE again as soon as they got my recon request-

I had to state some of it very strongly.

Established VA regulations and VA case law, to include a General Counsel Opinion fully suppored my CUE.

The actual basis of their denial- is WRONG, I told them in the recon request-as the evidence they said that was lacking is right in my c file, confirmed by my receipt of the c file-

it was right on top of my copy and can easily be found attached to other VA documents they have from General Counsel and VACO on another matter (plus in an award they made to me in 1998)

as well as referenced in my initial DIC claim.

I didnt send them what they said was missing-

they already have it- but if they ask me, I will send it again-with the proof of mailing. They got it in 1994 and awarded on it already. DUH!

It is critical to my CUE.

How can the VA say they do not have evidence of a claim filed in 1995 by my husband (in the c file of course) that I re-opened word for word and won FTCA and Sec 1151 on already? Double DUH!

You have done a GREAT Job-let's hope they do----

Edited December 14, 2006 by Berta

[Philip Rogers]

I filed a CUE (clear and unmistakable error) claim last year, which was quickly denied. I've already sent in my NOD (notice of disagreement) - about 6 months ago - but haven't gotten a statement of case yet.

In my CUE I pointed out that the RO had incorrectly interpreted the diagnostic code criteria when rating my condition. I supported my argument with previous decisions of the BVA that spelled out how the criteria was to be interpreted and applied. Then I pointed out that the supreme court (in Gardner) ruled that veteran's are entitled to the most advantageous interpretation of ambiguous rules.

Since then I discovered (by reading the Nicholson v Smith - 2006 FedCir decision) that since the VA has previously provided a publicly available (via bva's decision website) interpretation of my diagnostic code, I was entitled to application of that interpretation -under the Chevron standard of statutory interpretation.

My question is... Can I still submit this additional argument to support my NOD?

You can add evidence at any time, including your argument. If this is on appeal at the BVA level, you should waive the VARO's (AOJ) deciding on this evidence or the BVA will send it back to the AOJ, as they get first shot at it. jmo

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