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.

 

[EODCMC]

Little chance that I will receive the decision documentation prior to Tues. May 2. On E-ben and Vets.gov it still has it in "Pending Decision Approval".

[FormerMember]

It's fairly obvious what the VSO pulled off. S/he simply filed a new claim for the dermatitis @ 20% or more of exposed skin or the Rule of 9. A reconsideration is technically only feasible within a 72 hour period following the "preparation for decision". This allows a VSO rep (but not us agents/attorneys, mind you) to inveigh and declare a mistake. If it happens afterwards ( past the 72 hr. window), the VSO will mouth the words RECON but VA hears "reopen of old claim". Hence that later effective date. If the evidence was in the claims file when they awarded the 60%, then yes-your award should be the date of filing. On the other hand, if the Evidence of record shows a c&p in 2018 that reveals for the very first time  >20% of exposed skin, then that is the date entitlement to 60% arose. This is why having your claims file is imperative to keep VA honest.  A lot of Vets continue to develop a claim during the pendency of the NOD and thus would have varying dates on increased entitlement based on when entitlement arose.  

You would be a fool to trust the VSO. Remember, their allegiance is to the VA-not you. It's right there in their charter from Congress. File the 0958 pronto and reiterate the desire for a higher % based on the dr. report of % of skin affected. If VA "fixes" it, you can rescind the NOD and withdraw it. What you can never do is complain afterwards when they refuse to fix it and the decision becomes final and unappealable. Then you'd have to file the CUE. It's always easier to ask for forgiveness after filing a superfluous NOD than to ask your VSO to file a CUE after they hamburger it. Interestingly, I am, by law, required to follow what my client wants to do and can lose my accreditation if I harm his/her legal posture. VSOs can make unilateral, arbitrary decisions without your permission and suffer no consequences whatsoever for their screwups. Go figure, huh?

Once upon a time long ago, we had a TIC (troops in contact)  call and flew over for a look-see. It was ugly. We called in nape and CBU 26/49s to keep the gooks from overrunning our (General Vang Pao's) Hmongs. By law, we were required to request permission to use nape ahead of time from the US Ambassador or the Air Attache at the Embassy down in Vientiane. If we'd waited, we'd have had a lot of dead troops. We got quite the tongue-lashing for proceeding w/o permission but didn't end up at the Long Binh Home for Wayward Youth.  Sometimes you have to 'nape' VA to cover your derriere. 

Far too many of you subscribe to the old VSO saw about being careful not to "piss off" the VA. If that were the case, Berta and I would be penniless and s--- out of luck by now. I dare say a lot of you Hadit members would also be out of luck as well. You do not win these VA poker games by being shy and folding early. File it Monday with a certified mail return receipt requested (green card) to ensure you comply with the common law mailbox rule. It'll be the best financial return on $6.55 you ever invested.

Edited April 28, 2018 by asknod

[EODCMC]

asknod, first of all...thanks for responding to my post.

Para (1) - Not only should the evidence have been in my file, I referenced it in my reconsideration request. I have my C-file, but it is not up to date.

Para (2) - Understood.

Para (3) - Understood

Para (4) - Yes, I may have been acting a bit timid. I figured the truth would have  prevailrd. I never expected the VA raters to act like aggressive District Attorney, seeking a conviction regardless of truth. In this case, someone completely lacking integrity. And, I'm disappointed with a VSO that either takes the path of least resistance or is in cahoots with the raters.

Nevertheless; It was an honor to serve. If they never introduced concurrent receipt, I'd still be honored. If things don't go exactly my way, I may be disappointed, but I am still honored. But, just like a lopsided fight...they aren't going to walk away smiling.

Thanks again!

[Gastone]

Regarding Reconsideration Requests and the TIMELY Filing of a NOD.  Up until about late 2014, early 2015, any discussion regarding a Vet requesting a "Reconsideration" of an Appealable Decision was usually met with significant pushback by many learned Vet Advocates. There was no Official Standing regarding a "Reconsideration" request and a great many Vets really didn't have a clue as to the possible ramifications.

The VA displayed its Infinite Wisdom by introducing the "Official Request for Reconsideration" of an Appealable decision to be used prior to the expiration of the 12-month Appeal period. Unless something has changed, the VA stated originally that the Filing of the "ORfR" "DID NOT" toll the NOD Filing Deadline.                                                   EODC, I'Hand Deliver to your RO Intake Desk, the NOD in addition to the Cert Rect US Mail. "Double Your Pleasure, Double Your Fun," right.         I used the "ORfR" for a 01/16 Quality Review Award, filed it with the EOR VMC Treatment Notes attached approximately 3 days after receiving the Decision Letter. About a week later, it showed on E-Ben as a New Claim. New Retro Deposit hit within 2 months, followed by the New EED Decision Letter approximately 6 weeks later.                                        Had I not talked to my Marine Corps Lg DRO Hearing Rep (Retired Sr DRO), I would have filed a DRO Review NOD and had to wait 12++ months for a Decision.           

[Gastone]

I stand corrected again, hurts my feelings. 2015 M21-1 Part III clearly states that if the Vet includes with his "ORfR" the required New and Material Evidence, or indicates the location for said N & M Evidence, not EOR, a subsequent Denial of the "ORfR" will result in a NEW NOD Filing 12 month period.

Failure to supply the N & M E will result in an Administrative Denial and will not toll the NOD Filing Clock associated with the original Decision issues.

The Question is, did you supply N & M E with your "OEfR" or was it EOR pre-Decision?

[EODCMC]

"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."

This was new evidence supporting the notion that the decision for 10% was not reflective of my condition. The condition did not worsen, it was there for the DBQ; the examiner failed to look.
I think I understand the confusion...I may have misled you all. 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.

My VSO rep did this for me once with a successful outcome.  I asked the rep to do it again. I was surprised at his response. He thought I was rocking the boat and by raising my concern, I open myself to losing the 10% that was originally awarded. I was dismayed because he either didn't look at the new evidence or he had some other motive.

So, I did it myself. This was probably a mistake because I think they opened it as a new claim and didn't read the Statement in Support of Claim. Apparently, a VSO can send these directly to an RO as informal conversation. However, the only way I could was to open the claim in the normal way, online. I included a detailed explanation that this was for reconsideration and not a new claim.

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.