I won my CUE at BVA, EED back to 2003

[SigBnSoldier]

Many of you have assisted me in my filing of this CUE.  You can read about it in the thread here in the CUE forum called "Fully Developed CUE".

I just got off the phone with the former DAV service officer that used to be my POA.  He was able to access the BVA decision and read to me, 

Entitlement to an effective date of 11//2003 for PTSD w/bipolar disorder is granted

Entitlement to an effective date of 11/20/2003 for residuals of a fractured left ankle is granted

Entitlement to an effective date of 01/24/2004 for a back disability is granted

 

So not sure what the RO/AMC will rate them after the remand back to them, but I know back in 2003 the Los Angeles RO rated my bipolar disorder at 70% non service connected.  When they finally granted service connection for it in 2012 they rated it 70% P&T with IU

Anybody(now if they're required to rate the PTSD w/bipolar disorder at 70% P&T all the way back to 2003?  Since thats how they rated the NSC rating?  Berta?  Asknod?  

 

 

Edited February 7, 2018 by SigBnSoldier

[Berta]

"back in 2003 the Los Angeles RO rated my bipolar disorder at 70% non service connected.  When they finally granted service connection for it in 2012 they rated it 70% P&T with IU

Anybody(now if they're required to rate the PTSD w/bipolar disorder at 70% P&T all the way back to 2003?  Since thats how they rated the NSC rating?" 

Since they did grant SC for it, in 2012 ,I assume the EED was part of your appeal and they now have to rate it back to 2003. The retro would be back tro 2003,less whatever they paid you from the 2012 EED date.,

 

That is how I understand the award----I will read over your past posts.....to see if what I said makes sense.

You did VERY well! It is miserable for a CUE claim (as well as any type of claim) to have to get to the BVA-because that takes so long, BUT,

unlike many of our RO decision makers, the BVA CAN READ!

[SigBnSoldier]

Thanks Berta, for all your help, and everyone else.  It looks like to me that my rating in 2012 will be applied to the 2003 denial.  It'll be some time before I get the Judges decision as I have been stuck at Pending Case Dispatch for about two weeks now.  I emailed the board ombudsman, they informed me I had submitted evidence on 1/18/12018 and they didn't upload it until 2/5/18 which was the day before or day they were going to close the appeal and mail the decision.  Now they say the appeal has to go back to the judge for that document to be considered, even though I know it's moot evidence as I already have a grant (per DAV).

Oh well. 

 

Edited February 8, 2018 by SigBnSoldier
misspelled DAV, had put DVA

[Berta]

This reflects what I mentioned here a few times at hadit over th years -----

The BVA will accept evidence up until they actually take pen in hand and prepare their decision.

The decisions will take a little more time but the BVA always extends to us our rights----

They will read that evidence- even though it might be a moot point.

In some cases however-last minute evidence could trigger a good decision for some vets- as it might  even be the most probative evidence they have ever  sent to the VA.

I had a "moot " point statement in my 2009 BVA award.

The RO had voliated my VCAA rights. In those days a VCAA letter toa widow of a veteraqn had to be worded in a specific way. My former reps, to include their state director, would not support me in trying to get a proper VCAA letter from my RO.I still have the letter from their former director (he was replaced not long after that)that said I DID get a proper VCAA letter.

I asked BVA for a remand for a legal VCAA letter ,and they agreed it was not proper but awarded anyhow based on my evidence, and the VCAA violation was therefore a "moot" point, per the BVA.

 

 

 

 

Edited February 8, 2018 by Berta

[SigBnSoldier]

My appeal closed yesterday.

 

What's driving me crazy is I can not find any case law or decisions, board or cavc, that explain whether VA has to abide by their original non service connected rating of the decision that contained CUE.

 

I'm trying to have something to fight VA with in case when they implement the judge's EED but they don't give me P&T but instead lowball at 30% or even 10%.

[Berta]

Al though a NSC rating can certainly become a SC rating in time, when a veteran persists on getting SC evidence- the problem for CUEs is that the CUed decision and rating depends on established medical evidence at time of alleged CUE decision. I dont know of any case in which.... explain whether VA has to abide by their original non service connected rating of the decision that contained CUE....for a living veteran...because disabilties usually dont get better, they get worse.

However if the VA did not rate the disability legally via diagnostic code and rating -to the veteran;s detriment - based on that established medical info they had when they made the NSC decision, then they cannot  really hang their hat on the older rating , and many diabilities get worse in time anyhow.The evidence of that would prompt an appeal and maybe even another CUE claim.

It is a difficult thing to really opine one.......

My SMC CUE is example of what I mean.

The veteran's medical evidence established at time of the 1998 decision warranted a 100% rating for  my husband's 1151 stroke and he had a posthumous 100% P & T award for PTSD.

The ratings for stroke were wrong and also they violated 38 CFR 4.6 by failing to consider him for SMC S per the SMC mandate because they knew he had a posthumous 100% P & T rating PTSD rating.

Another CUE I had was maybe based more on what you stated.

The veteran (my husband) had a 10% HBP rating as NSC.  I won a CUE for a Section 1151 rating , with a statement that the HBP had contributed to his death.

I knew I could not get a higher HBP rating because this was a documented FTCA malpracticed condition and the rating should have been higher but due to the malpractice I could not prove that.The veteran was dead when the 10% NSC rating was made.If VA had not caused his death, there is a good chance they might have rated it   much higher due to his 1151 claim ( which I had to assume after he died.)

But any NSC rating that beomes eventually a SC rating- can be appealed then if the rating is still too low, based on the subsequent medical evidence VA has....meaning they cannot hold to an older NSC rating in that case,unless they have more current medical rationale,in the newer claim that warrants either a Fenderson (staged ) rating or a higher rating that stems from something they mention in their decision (such as if the veteran subsequently had attained SSDI for the original low balled NSC decision.

hope that all makes sense...

Yet if the VA does decide to put HBP onto the AO presumptives, (they have not made any new AO decisions yet)

and if Nehmer footnote one kicks in, I will have chance to prove his HBP "should have been rated" properly and I will seek a Fenderson rating  staged, going up to 100% ( due to the VACO FTCA report-with one more AO DIC award.I have 2 now.

Yet I see what you are doing...anticipating the worse case scenario- I did that for every one of my claims.But sometimes we dont need to waste that energy until we get their decision.

I even spent money for a 3rd IMO that I didnt even need - for my DMII death claim.I over - anticipated  what BVA might do to try to deny that claim ,but they did it all right.

 

 

 

Edited February 10, 2018 by Berta

[Berta]

PS forgot to mention Myler V Derwinski is one of the BEST CUE claims I have ever read---and I  have read it many times . The ratings were clearly erroneous -1953 decision, won at COVA-rating raised via CUE-1991-

a Nice chunk of change

https://veteranclaims.wordpress.com/2009/03/21/myler-vderwinski-no-90-1098-cue-456-472/