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Effective Date Error a CUE?

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EODCMC

Question

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.

 

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THANK YOU GASTONE- I asked here right after this recon regulation was published for comments on what it meant because although many (but maybe only a few of us)vet advocates gripped about the One year NOD deadline that used  to apply to claims that the claimant had filed a Recon Request.....

Thank you beacuse you took the time to read it!!!!!!!!!!!!! I was so happy to see the regulation change,I could hardly believe it was true.

A lawyer who comes here as well as former member ( a VSO) did not understand reconsideration at all and I wonder if by now they get it. I wonder if ANY VSOS even get it.

My only  personal Reconsideration request was made after the RO denied a SMC CUE claim I had filed in 2003 . Since Motions for Reconsideration could be filed on BVA decisions, obviously that would apply to a VARO decision as well- this was my ratioanal 2003 when the CUE was denied. 

The VARO never suggested my right to file this type of request was wrong,

but even with N & M (2 IMOs, )they failed to award.

I knew I would win at the BVA but then a miracle happened.

While awaiting  a transfer to the BVA, Nehmer 2010 happened.By then my CUE still sat at the RO, and I got some BS rhetoric during those 7 years,  I had filed a timely NOD, and realised that Nehmer needed to address this CUE plus one for IHD I filed in 2004.

It took Nehmer ( after one more ridiculous deial I got them to reverse fast) mere weeks to award the AO IHD claim as well as the 2003 and 2004 CUE claims.

My long point here is there is a lot of misunderstanding on Reconsideration requests...

ZBut there is no point t filing one if a vet does ot have N & M to send with it or whip uty a violation under 38 CFR 3.156 if they can.

EOMCDC please don't feel that you misled us---this VAOLA crap could give anyone PTSD.

"Whether I did something inappropriate, can the VA open a New Claim for something that is still in the appeal timeline of one year from the dated letter of the decision."

Apparently, common sense doesn't prevail when it comes to chipping away at one's retro. They are willing to let me open an expensive NOD and devote resources to an appeal that is avoidable and will probably go in my favor."

You might be able to file a GCY claim when you get the next decision ( GCY-Go CUE Yourself     VA  )😀

If you can scan and attach it here when it arrives (Cover C file#, Name)

I will do my best to seek a CUE in it...and if I find , I will write it for you  here-to file-

to see if you can get the proper EED, sooner than later.

Personally this should be good enough for them to do this right:

I didn't ask for a technical reconsideration; I used the 21-4138 to communicate informally to the RO that I had new evidence that they may have rated me too low. I was giving them and myself an opportunity to readdress this prior to submitting a NOD."

That does mean however that the NOD had to be filed timely---which I think you did do.....even if the NOD is too late per the VA, there might be a good legal way to get around that too...38 CFR 3.109/ 38 USC 501a

If I worked for them I would consider that 21-4138 as a valid Recon Request....

This will wotk out OK for you ,I am sure.

 

 

 

 

 

 

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Berta, thanks for the reaffirmation and offer of help. I will certainly do as you suggest.

I'm a little torn between gratitude of the VA (My Country) with my disappointment with their process and systemic shortcomings. That they will compensate me for my service maladies takes precedent. I don't want to come away from this challenge looking mercenary or a gold-digger. Regrettably, I think the folks working the processes will think that way regardless of the validity of my claim. 

I'd like to convey a compliment to you, Asknod, Gastone, and Broncovet; thanks for taking the time to reply. I find myself reading your comments on these forums, even when the subject matter has no relationship to my claims. 

"EOMCDC please don't feel that you misled us---this VAOLA crap could give anyone PTSD." Is this a stressor? Ha...they probably wouldn't appreciate the humor if I filed a claim.

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I dont file "reconsiderations" because there is much confusion on them, even tho Berta and GAstone pointed out that VA now has to consider them as NOd's in many circumstances.  Still, the senior management does not often keep up with new regulations, so they direct VA employees to do stuff like NOT consider a recon as a denial.  

It often takes many years for VA employees to get "up to speed" especially on newer regulations.  For example, I consider Howell a "game changer" in regard to SMC S.  Even tho Howell is mentioned in M21's, when I suggested I qualified for SMC S, under Howell, they responded like I was from outer space..pretty much ignoring me.  https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

Chris Attig, and other attorneys dont recommend filing reconsiderations, at least, not without "new and material evidence", then its called a "reopening", but I wont argue wether a reopen or reconsideration is the same thing.  

I dont like having my claim have "areas of confusion" such as reconsideration.  I want it to be simple enough that a first grader could figure it out, since THAT is when I learned to read.  

At higher levels, such as CAVC, these judges know how to read.  Sometimes, hurrying your claim up is getting it to someone who knows how to read as quickly as possible.  

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"At higher levels, such as CAVC, these judges know how to read.  Sometimes, hurrying your claim up is getting it to someone who knows how to read as quickly as possible" 

Probably so...definitely a good strategy if one is already being compensated at the 100% level. 

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I queried my VSO rep again about my concerns. She responded with:


"I apologize for any confusion or delay- when you sent me the signed NOD last Wednesday, I faxed it in. The NOD has already been filed in your case and should no longer be a concern. This is a moot point now that a decision has been made on the issue.  

As for the decision, it is possible for the decision to change between the date of the decision and the notification letter; however, it is unlikely. It sometimes takes a few days/weeks for the decision to be finalized and for that information to be reflected in ebenefits- please do not rely on ebenefits until the rating has been finalized- it is often unreliable. I will continue to check on your case this week and will let you know when it has been finalized. 

As for the effective date of the dermatitis, you filed an intent to file on 2/9/18 and a fully developed claim on 2/24/18 for an increase in dermatitis." 

I thanked her and told her:

"Thanks for relieving me of my concerns. I feel comfortable and will await the arrival of the decision package. Please do not cancel the NOD until I have had a chance to review everything."

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