Effective Date Error a CUE?

[EODCMC]

I will be simple and brief unless more specifics are asked of me:

May 2, 2016 - I received a SC disability letter for Dermatitis at 10%. This was retroactive with an Effective Date of March 1, 2017.

Subsequently, during one of my regular visits to VA Dermatology I questioned the VA Dermatologist (specialist) on the % of my body that was affected. She put in my notes (My Health Vet) that it affected more than 60%. Additionally, I had a C&P exam for sun damage and actinic keratosis (AK). The examiner put on the DBQ that more than 40% of my body was affected by Dermatitis. 

Feb 9, 2018, I submitted a Reconsideration to increase the original assessment from 10% to 60%. I was and still am within a year of that decision.The VA sat on this, presumably because they were going to lump this with the Sun Damage and AK. Not so! 

Apr 10, 2018 - I emailed my VSO a filled out NOD for submission. She asked me to hold off and see if there was something internally that she could do to move this along. I reminded her that MAY 2 was my deadline. 

Apr 25, 2018 - I told her to submit the NOD.

Apr 26, 2018 - She sent me the following e-mail:

----------------- "Just wanted to check in with you b/c the VA made a decision on your claims! The VA increased your rating of dermatitis to 60% effective February 9, 2018. The left and right lower extremity radiculopathy were both granted at 10%. You are now rated at 100% permanent and total. The VA will be sending you the rating decision in the mail shortly. Please review it carefully and let me know if you have any questions."

I thanked her, but yesterday I sent the following:

"I just noticed the effective date you indicated on your previous e-mail concerning the Reconsideration for increased rating of Dermatitis. Shouldn't this be March 1, 2017? That's not a small amount of retroactive dollars. As you are aware, I am at the 12th hour concerning a NOD, should that become necessary. 

I could see this date of Feb 9, 2018 being the effective date of the bi-lateral radiculopathy.

Please advise, should we still submit the NOD for Dermatitis? We could always cancel it if everything looks fair when I received the formal package.

FYI, I have seen no change on E-benefits nor Vets.gov."

My questions:

• Am I correct?
• Can they say they Reopened the Dermatitis claim? My understanding is they cannot Reopen a claim until after a year since the decision.
• Do you think they are dragging their feet until after May 2 when the year would have passed to save a couple thousand dollars in retro?
• It feels like a backroom deal between the RO and my VSO
• I plan to get the NOD in with or without my VSO on Monday May1.
• If this thing goes south for any reaso, including retribution, do I have a case for a CUE?

Ha...This wasn't as brief as I thought it would be. Your help is greatly appreciated.

 

[broncovet]

Dont file a Cue, file a nod (timely) instead.  Its easier to prove a nod, than a cue.  (The cue standard of review is a higher standard of review.  

I think you should dispute BOTH decisions.  One, dispute the disability percentage, and in the most recent one, dispute the effective date.  

VSO's are often very liberal about giving away our money, but see if they are so liberal at giving YOU their money!  

In virtually all cases, its better to file a nod than a cue.  Cue is for when you discover the error AFTER the one year appeal period.  

NOD BEFORE A YEAR AND CUE AFTER A YEAR.  

Now, Berta has had good luck "asking the VA to cue themselves" with a claim still in the appeal period.  While this sometimes works, she will admit that you should STILL file a nod within the one year appeal period.  

You can file a cue anytime, but you can only file a (successful) nod within a year.  

[EODCMC]

Thanks Bronc, You are absolutely correct. I missed the point entirely when I was thinking this through.

[Berta]

"Please advise, should we still submit the NOD for Dermatitis? We could always cancel it if everything looks fair when I received the formal package.

FYI, I have seen no change on E-benefits nor Vets.gov."

• "Am I correct?" Yes, as Broncovet advised, get the NOD in on time and get proof of mailing. BUT *****
• "Can they say they Reopened the Dermatitis claim? My understanding is they cannot Reopen a claim until after a year since the decision." I dont see how they could" re-open a claim that is technically still in progress because of the new evidence -that warranted the 60%
• "Do you think they are dragging their feet until after May 2 when the year would have passed to save a couple thousand dollars in retro?" Possibly=they tied that BS on me once.
• "It feels like a backroom deal between the RO and my VSO" Yeah, maybe ,but  maybe not---
• I plan to get the NOD in with or without my VSO on Monday May1.
• If this thing goes south for any reaso, including retribution, do I have a case for a CUE?
• Most probably YES!

******This was a reconsideration and with reconsiderations they used to only give the one year NOD deadline but that changed and I posted the new regulation here about 2 years ago---

You can also appeal the Reconsideration decision.

I also posted it recently -per this post-but link  didnt work- I will try to link it again....

 

 

[Berta]

Here is the March 2015 change to the way ROs handle Recon requests:

https://community.hadit.com/forums/topic/61898-official-request-for-reconsideration-at-varo-level/

I interpret this all to mean that the NOD deadline is extended to one year after the Recon Request is decided....because you can appeal the Recon Request decision.

I posted this elsewhere but Carlie posted it too , above.

My point is that you might not need to file a NOD yet-based on above, M21-1MR change, but you can always withdraw it- better to be safe than sorry----

This is the part I mean:

But the entire M21-1MR change has to be read.

 

"Change Date

March 24, 2015

a.  Definition:  Request for Reconsideration

For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired)."

I wou;d be grateful for any opinions on this Change.

 

A request for reconsideration differs from a claim to reopen in that the decision at issue in a claim to reopen has become final.

 

Reference:  For more information about claims to reopen a finally denied claim, see M21-1, Part III, Subpart ii, 2.E."

 

Edited April 28, 2018 by Berta

[Berta]

I said probably a Yes on any potential CUE-but that would depend on what the VA knew and when they knew it.

If the VA had in their possession, establlished medical evidence that warranted the 60% at time of the 10% award,and yet only awarded the lower  rating ,they committed a CUE by violating 38 CFR 4.6. But often VA uses a C & P exam date as the EED and sometimes that date is wrong re: the actual EED.

Wow :

"VA increased your rating of dermatitis to 60% effective February 9, 2018. The left and right lower extremity radiculopathy were both granted at 10%. You are now rated at 100% permanent and total." So far so good but I hope that decision comes soon so that you have documentation of it ASAP.

Does the Feb 2018 date correspond to a C & P exam  you had prior to the one they gave you that garnered the 10%?

[EODCMC]

Thanks Berta, I fully understand your advice.

The Dermatologist report and DBQ happened a couple of months after the original decision for 10%.The original decision SC me for Dermatitis at 10% was based on a C&P exam that included many claims combined. He never did an inspection of my condition unclothed. In fact, he didn't even ask me to roll up my sleeves.

 

41 minutes ago, Berta said:

Does the Feb 2018 date correspond to a C & P exam  you had prior to the one they gave you that garnered the 10%?

No, it only corresponds to the date I submitted the Reconsideration. I think they may have looked at it as a NEW CLAIM. The only way I could submit it electronically was to open a claim and attach a 21-4138 with the following verbiage:

" I respectfully request Reconsideration to correct your Dermatitis decision effective Mar 1, 2017. On the decision letter dated May 2, 2017, I was rated at 10% based on "less than 20% of the entire body affected". My VA Deramatologist (Specialist) report of Jan 6, 2018 and a recent DBQ dated Feb 2, 2018 differ with that opinion. The Dermatologist opines that more than 60% and the C&P examiner has an opinion of more than 40% of my entire body is affected by Dermatitis. Additionally, I am prescribed antihistamine medication, topical steroids and quarterly PDT (UVA) for Dermatitis."

If, by mistake, they opened this as a NEW CLAIM, they should have closed the NEW Claim and combined with other open claims and it would be recorded. My Reconsideration request was seemingly ingnored. No mention, no documentation that they even received it. Not until my VSO sent me the e-mail that it was increased with a Feb 9, effective date. And again, how can they start a NEW CLAIM when I am still within the 1 year threshold for the same condition?

Edited April 28, 2018 by EODCMC