Unadjudicated claims and EED

[Atlcocky]

First time poster. Forgive me if it's not very good!

I want to find out the best way to attack a claim and EED issue.  I have informally and formally requested a nerve condition claim (mainly neck, arm and hand). The condition was in my service medical records and missed or ignored when I got denied for the back, neck and shoulder issues back in 1996. Since separation, I have sent them several documents stating that I have a nerve problem. The American Legion has sent them a request to adjudicate the nerve condition. It is also mentioned in a SSOC and on a C & P exam. I believe that I have an extremely strong case on the service connection part. On the EED, should I just file the claim knowing that I will appeal or fight it on CUE? or is there a way to fight for the EED in the initial claim request?

 

I have been reading the court proceeding on Implicit denial and pending claim doctrine. I still can't figure out if there is a way to get the EED upfront without the long drawn out CUE or appeal process.

 

Thank you all for the information on the site and the hours many of you put into making it better everyday. I hope to be an aid to someone some day.

[porgee]

Did you file the claim for the neck ,back ?  The SSOC what happen too that??

If the claim is close or final than if you have the evidence and the error of law that 

was made by VA by all means file a CUE claim for SC and EED. I am not a CUE 

expert but someone more experience with Cue claims will reply.

[broncovet]

There is a specific order to things in Va.  First, service connection, then disabiliy percentage, and lastly effective date.  The VA insists on those in that order.  

While Im not going into CUE here, as this is the most difficult path for you, you can simply re apply, and if awarded, appeal the effective date, for reasons you gave.  

Remember, you have a year for a regular appeal, but a CUE can come anytime.  Your chances of a cue are better, IMHO, if VA has already awarded your benefits.  This is like there admission you deserve them, but now you need only dispute "when" you deserve them, that is, the effective date.  

All this said, Berta is very good at CUE, and, there might be a CUE somewhere.  Still, you can always file a CUE later, if you can not obtain the effective date you want by less restricictive means.  

I think it helps to understand that CUE is a "standard of review", not some sort of an error.  Yes, it is an error, but its not enough that its an error, it must rise to the CUE "standard of review".    If VA mispells a word on your decision, well that is an obvious and verifiable error, but that does not mean you will get x benefit because they misspelled your name.  CUE errors must be "out come determinative" and a misspelling of name is not outcome determinative.  

My advice:  Refile, and, if your benefits are awarded file a nod disputing effective date.  Only if this fails should you consider Cue.  Now, I have great respect for Berta and her opinions, and she may identify a cue error if she reviewed your file.  So may an attorney.  Absent a complete reveiw of your file, I have no idea if your claim will meet the strict "cue standard of review or not", but I do know it raises the bar you must jump over to get benefits.  

[broncovet]

All this said, 38 CFR 3.103 explains you are entitlted to a "written decision on your claim".  The problem is "when".  VA can say, "oh yea, we are really sorry we didnt get your claim done from year 2000.  

Isnt that backlog awful?  We will get to your claim as soon as possible , thanks for letting us know.  If you have any more questions please call Peggy."  

They can say the same thing 5 years, 10 years, or 50 years from now.  There is no limit to the amount of time VA can take to process your claim.  

YOU have to force the issue.  You can do so, too.  One of the ways is a writ of mandamus another is a call to the white house.  Dont do those things unless you have exhausted other means, such as sending an IRIS email inquitiring on the status of your (claim for xx in 2000), or call Peggy.  

Edited July 14, 2017 by broncovet

[Atlcocky]

16 hours ago, porgee said:

Did you file the claim for the neck ,back ?  The SSOC what happen too that??

If the claim is close or final than if you have the evidence and the error of law that 

was made by VA by all means file a CUE claim for SC and EED. I am not a CUE 

expert but someone more experience with Cue claims will reply.

I am filing to reopen the neck and back along with the nerve condition. Same claim with 3 issues

[Atlcocky]

15 hours ago, broncovet said:

There is a specific order to things in Va.  First, service connection, then disabiliy percentage, and lastly effective date.  The VA insists on those in that order.  

While Im not going into CUE here, as this is the most difficult path for you, you can simply re apply, and if awarded, appeal the effective date, for reasons you gave.  

Remember, you have a year for a regular appeal, but a CUE can come anytime.  Your chances of a cue are better, IMHO, if VA has already awarded your benefits.  This is like there admission you deserve them, but now you need only dispute "when" you deserve them, that is, the effective date.  

All this said, Berta is very good at CUE, and, there might be a CUE somewhere.  Still, you can always file a CUE later, if you can not obtain the effective date you want by less restricictive means.  

I think it helps to understand that CUE is a "standard of review", not some sort of an error.  Yes, it is an error, but its not enough that its an error, it must rise to the CUE "standard of review".    If VA mispells a word on your decision, well that is an obvious and verifiable error, but that does not mean you will get x benefit because they misspelled your name.  CUE errors must be "out come determinative" and a misspelling of name is not outcome determinative.  

My advice:  Refile, and, if your benefits are awarded file a nod disputing effective date.  Only if this fails should you consider Cue.  Now, I have great respect for Berta and her opinions, and she may identify a cue error if she reviewed your file.  So may an attorney.  Absent a complete reveiw of your file, I have no idea if your claim will meet the strict "cue standard of review or not", but I do know it raises the bar you must jump over to get benefits.  

Thank you for the information. I will follow the order. I just wasn't sure about whether or not I could do the EED at the same time with a well written claim. Thank you again.

[Atlcocky]

15 hours ago, broncovet said:

All this said, 38 CFR 3.103 explains you are entitlted to a "written decision on your claim".  The problem is "when".  VA can say, "oh yea, we are really sorry we didnt get your claim done from year 2000.  

Isnt that backlog awful?  We will get to your claim as soon as possible , thanks for letting us know.  If you have any more questions please call Peggy."  

They can say the same thing 5 years, 10 years, or 50 years from now.  There is no limit to the amount of time VA can take to process your claim.  

YOU have to force the issue.  You can do so, too.  One of the ways is a writ of mandamus another is a call to the white house.  Dont do those things unless you have exhausted other means, such as sending an IRIS email inquitiring on the status of your (claim for xx in 2000), or call Peggy.  

Hey Broncovet.

Who is Peggy and Berta? 

I'm still a Hadit infant.