Help? Do I have a CUE

[piscesbaby]

Hi everyone! I'm new to the page and was hoping someone here might be able to give me advice on possible next steps. I've already taken action on getting earlier effective dates for two conditions but because you never how claims are going to go I want to prepare myself should my claim not go in my favor. My story begins in 2007 when I filed my initial claim with the help of AMVETS. The entire VA claim process was very intimidating and I depended heavily on my VSO to tell me what I could/couldn't claim. He went through my STR and told me what I could claim. Ultimately, I was awarded 60% and felt extremely lucky given all the negative things that I had heard about dealing with the VA. Once I received my award I didn't revisit my VA claim until 2016. My conditions had gotten worse and after doing research online and finding the CFR I realized that I was not being compensated fairly and that I was also not being compensated for conditions that I had in service/currently had and were never claimed. I filed my intent to file and then scoured my STR for evidence of current conditions that I wanted to get SC. This post only concerns two conditions that I believe I should have an earlier effective date for so I will only mention those two below. I figure the easiest way to digest my story is by listing everything chronologically so here I go:

 

Sep. 4, 2007: Separate from the Navy

Oct. 24, 2007: File claim for chronic lower back and radiculopathy down right buttocks, also filed claim for SUI, Cystocele and Rectocele 

Jan. 24, 2008: Awarded service connection for lumbosacral strain 10% (claimed as lower back condition w. radiculopathy down right buttocks) Awarded SC for Urinary Stress Incontinence with Cystocele and Rectocele 20% Effective Date: Sep. 5, 2007

 

May.9, 2016: File Intent to file

Jun. 16, 2016: File claim for increase for chronic lower back condition, file new claim for uterovaginal prolapse

Sep. 6, 2016: Awarded increase for lumbosacral strain 20% (claimed as spine condition), awarded SC for radiculopathy right lower extremity (20% even though I did not claim this but it was noted during my C&P exam for increase for chronic back pain), awarded SC for uterovaginal prolapse (30%) Effective Date: May. 9, 2016

Apr-May 2017: Look through old rating decision and claims file and realize that I had claimed radiculopathy on my right side in 2007 claim. Realized that the VA mentioned my uterovaginal prolapse in their decision about my SUI and cystocele/rectocele.

Aug. 30, 2017: Visit Baltimore RO with NOD in hand to request earlier effective dates for my uterovaginal prolapse and radiculopathy, they stamp it and then tell me that I need to file a new claim not a NOD. They told me that I can't appeal a decision that they haven't issued yet. They rip up my NOD (which I still have) and provide me a form 21-526ez where I request earlier effective dates.

Sep.6, 2017: I receive a letter from the RO stating that I filed my NOD on the wrong form. This was confusing because I didn't file a NOD because the RO told me that I had to file a new claim for the EED. 

Sep. 16, 2017: They add the new claim for earlier effective dates and I can see it in E-benefits. They combine it with a current claim that I still had pending for something else.

Sep. 26, 2017: (decision on uterovaginal prolapse and radiculopathy become final)

Oct. 6, 2017: My claim on something else is completed and they completely ignore the claim that I filed for earlier effective dates

 

Mar. 6, 2018: VSO fills out another claim requesting EED for uterovaginal prolapse, and radiculopathy.

Claim is currently at preparation for decision

 

I believe that I'm entitled to earlier effective dates because 1) I claimed radiculopathy on my right side in 2007 and they combined it with my back pain in 2007 and issued me one rating. My symptoms are exactly the same now as they were in 2007 so why were they able to issue me a seperate rating in 2016? I was diagnosed with sciatica/piriformis syndrome in service and I have radiculopathy that originates in my buttocks and goes down my right leg.  2) I didn't claim uterovaginal prolapse because I didn't know that I could but the VA knew about it and mentioned it in their Rating Decision narrative for SC for my SUI and cystocele/rectocele. Everything that I read says this amounts to CUE because they did not "sympathetically read my claim and determine all potential claims raised by the evidence". I was told by my VSO that they were supposed to invite me to claim that condition which they never did.

 

What do you guys think? Had the VA issued me ratings for those two conditions I would have been awarded 80% instead of 60%.

Edited March 25, 2018 by piscesbaby
typo

[Buck52]

“CUE” is an acronym for “clear and unmistakable error.”  In reality, there is no such thing as a “CUE claim.”  This type of request is properly entitled a “motion for revision based on clear and unmistakable error.”

A motion for revision of an earlier decision is rarely granted but can be a useful tool for getting an earlier effective date in the right case.  A motion for revision should only be made when the VA made a specific type of error and but for that error, the VA would have granted the claim.  A motion for revision is appropriate when the VA erred by incorrectly  applying the law that was in effect at the time of the prior decision and when the facts are clear that the claim would have been granted if the law had been correctly applied.  It is much easier to demonstrate that VA did not apply the law correctly than it is to try to show that it did not evaluate the facts correctly.

Motions for revisions have very specific pleading requirements.  It is important to lay out the history of the claim and, particularly, the facts as they were known at the time of the challenged rating decision.  VA will not consider evidence submitted after the challenged rating decision when determining if a clear and unmistakable error was made in making that prior decision.  The motion must also specifically include the error that the veteran alleges was made in that prior decision and must show that the VA relied on that error in making its decision.  You must describe the error that VA made and explain why there would have been a different outcome if the error had not been made.  In other words, you must explain how the VA would have been required to grant your claim under the facts and law at the time if it had not made the error.

 

Source: Hill & Ponton disability Attorneys 

Edited March 25, 2018 by Buck52

[Buck52]

I Wanted to touch on the VSO then tore up the NOD Form

VA has no control over what a VSO says or does  if he is wrong it's up to the Veteran to perfect his/her own claim your responsible for your own claim in all circumstance.

the information your getting here  is all correct  and you have a choice to use it.

 It is your choice You can file a CUE and use your evidence that you think will prevail..and just see what happens.  worse thing that can happen is a denial...if your still in your time line with appeals  you can still appeal  CUE decision  unless VA closes the CUE for for this contention for good and made final.

 However, if the decision is a decision from the Board, a veteran only gets one shot at a motion for revision.  If the motion isn’t done correctly at the Board level, VA will dismiss the motion with prejudice, which means that it cannot be re-filed, and the veteran will be barred from any further efforts to show clear and unmistakable error in the Board’s decision.

Source: Hill &Ponton Disability Attorney's 

Edited March 25, 2018 by Buck52

[piscesbaby]

Hi Buck,

Thank you so much for all of your great feedback. I wanted to clarify that it wasn't my VSO that tore up my NOD. It was a Senior Rater at the Baltimore Regional Office. He happened to be walking by while I spoke to the intake person at the front desk.