To Cue Or Nod

[Shawnny]

Good Morning fellow vets...i have a question..i'll give u a brief history(lol).had a lot of issues while i was in the military, so i got out thinking i was ok,,,after 10 years of attempting to get a job...job failures...working 2hrs,,,2 weeks...ect. My friend told me that i needed to go see someone at the va med.center....i did...VA awarded me nsc pension..for major depressive disorder in 2001july...im thinking this isnt right..so i appealed it...the case went to bva and was remanded back to regional office in cleveland which awarded me 50%sc for mdd jan2005..im thinking this is not right VA deemed me unemployable..thats why they awarded me nsc pension?? So i appealed that...was sent a notice stating they receive my nod for my 50%june2005 so i checked that i wanted a dro officer to review it and sent it in....in the meantime..had mental breakdown and totally forgot about my nod for my 50%...I filed for iu and after sometime they granted it this dec2006...but the effevtive date was off...i called va and inquired about my nod for my 50%...they said it was closed..because i didnt send in a form 9 that was sent with statement of the case..i was like..i never received it..they stated it was sent july 2005,,so i hang up and start searching for this soc..nothing!...I called my vso who hasnt helped me in any way shape or form..if he received it...he was like yeah...i told him i didnt get one..i then asked him what address did they send it to..My OLD address after they had just sent me notification that they receive my nod!! Fellow vets can i CUE them on this for my effective date since they purposely sent this to my old address and i wasnt able to respond..or should i just send in a nod for my iu effective date and send in the necessary paperwork?? Sorry for the long drawn out story...i was always hearing about va doing little things ,,but i never believed until it happened to me... B)

[Vike17]

Shawnny,

Something doesn't sound right. You said that the VA garnted you service-connection for 50% but awarded IU. Normally, if you don't have a disability or disabilities that reach the percentage requirement for IU, then the RO should send your case to the Director of Compensation in Washington D.C. if the RVSR thinks you're unemployable due to your service-connected disabiliy(ies). However, having said that, this is generally reserved for disabilities that have a maximum rating according to the rating schedule that doesn't reasch IU criteria. For example,Migraines, which have a maximum of a 50% rating. For disabilities that do have precentages that reach the requirements for IU, the VA will normally, when the evidence shows unemployability, raise that disability in accordance with the percentage requirements and then award IU.

In your case you said you, or I should say your SO, received a SOC further denying your appeal for a higher rating for Depression, but awarded IU anyways. Do you have any other service-connected disabilities that you didn't post here? If the evidence in your case warrent IU, the correct rating for your depression would be 70% or 100%, thus allowing IU to be granted on that basis, not 50% with IU. Something isn't adding up here. there is more to this than what you are posting.

Did you report your new address to VA when you moved? If not, that's on you and the VA sends stuff to the last address of record. Also, your SO did receive a copy of the SOC and sounds like your beef should be with him. This doesn't constitute a CUE because, even if you did let VA know your new address, this would be a proceedural error. There is a big difference in the two. The only thing that would be possible in your case, if you did let VA know your new address, is let the VA know this and they would allow you to submit either new evidence in response to the SOC or VA Form 9 to perfect your appeal and have the BVA look at it. Remember you have to have proof that you changed your address with VA and they sent the SOC to the wrong address. Having said that, I don't know if even that would fly because your SO did receive it and he's your POA.

Something with this whole senario doesn't add up. I suspect there is more to it then what is posted.

Vike 17

Edited January 7, 2007 by Vike17

[Berta]

Shawnny -if I were you I would file the NOD on the EED-

and tell them of any evidence at all that would support the earlier effective date.

The VA has made some exceptions to the rule on filing dates when the veteran had an obvious good reason-

but still -I feel you have lost nothing as they did award TDIU anyhow-

did they use the date they got the TDIU form from you or did they go by a date that they already determined had shown total disabilty- due to service-due to medical evidence-/

I dont see this as a CUE claim at all- not even any spiteful error on their part-

they just did not send the SOC to the right address-and apparently the post office did not forward it-that is very unfortunate but you did get TDIU and can still fight over the EED.

[Shawnny]

Shawnny -if I were you I would file the NOD on the EED-

and tell them of any evidence at all that would support the earlier effective date.

The VA has made some exceptions to the rule on filing dates when the veteran had an obvious good reason-

but still -I feel you have lost nothing as they did award TDIU anyhow-

did they use the date they got the TDIU form from you or did they go by a date that they already determined had shown total disabilty- due to service-due to medical evidence-/

I dont see this as a CUE claim at all- not even any spiteful error on their part-

they just did not send the SOC to the right address-and apparently the post office did not forward it-that is very unfortunate but you did get TDIU and can still fight over the EED.

Berta and Vike17.,,,it wasnt an easy process but i was awarded 70%IU for mdd only...my eed was 2005..it should have been july2001...so ur saying to just file nod for eed for iu?? Vike17,,i have always let va know my whereabouts,,i had just received a statement from them saying they received my nod..that was june2005..and then i never heard about it again..i should have fired my vso a long time ago...

Edited January 7, 2007 by Shawnny

[Vike17]

I think I know what happened know. I'm willing to bet that you were raised from 50% to 70% for your Major Depressive Disorder, but the VA had to issue a SOC because they couldn't for some reason grant the full benefit allowable on appeal i.e. 100% schedular. If this is the case, you still should have also at some point in time received a rating decision raising you from 50% to 70%. Then after you were issued the SOC, sometime between July 2005 and Now, as you didn't mention when your SO received it, you filed for IU. If this is the case, then the effective date could be correct, especially if the IU application was submitted after the 60 day time limit to perfect the appeal or to submit additional evidence. If you did submit the IU claim within the 60 day time limit, that could be contrued as additional evidence.

Another thing that may happened is that after you were issued the SOC, you filed for IU. Then the VA raised your MDD to 70% and awarded IU. If this is the case, did you file the IU application within the 60 day period after being issued the SOC?

At any rate, you are being paid at the 100% rate, so the actual rating of the Major Depressive Disorder is a moot point.

Is one of these senarios correct?

Vike 17

Edited January 7, 2007 by Vike17

[Shawnny]

I think I know what happened know. I'm willing to bet that you were raised from 50% to 70% for your Major Depressive Disorder, but the VA had to issue a SOC because they couldn't for some reason grant the full benefit allowable on appeal i.e. 100% schedular. If this is the case, you still should have also at some point in time received a rating decision raising you from 50% to 70%. Then after you were issued the SOC, sometime between July 2005 and Now, as you didn't mention when your SO received it, you filed for IU. If this is the case, then the effective date could be correct, especially if the IU application was submitted after the 60 day time limit to perfect the appeal or to submit additional evidence. If you did submit the IU claim within the 60 day time limit, that could be contrued as additional evidence.

Another thing that may happened is that after you were issued the SOC, you filed for IU. Then the VA raised your MDD to 70% and awarded IU. If this is the case, did you file the IU application within the 60 day period after being issued the SOC?

At any rate, you are being paid at the 100% rate, so the actual rating of the Major Depressive Disorder is a moot point.

Is one of these senarios correct?

Vike 17

Vike17...i didnt even know about the soc until recently...the va closed my case period//when i filed for iu thats when they gave me 70%and granted me iu...i filed iu in april 2005...my case for my nod for 50% was closed in sept or oct 2005..thanks

[Vike17]

If you filed for IU in April, 2005, becuase of your MDD and your SOC was issued sometime in the summer of 2005 (you said the VA acknowledged your NOD in June 2005) furthing denying an increase for your Major Depressive Disaorder above the granted 50% evaluation, and then VA granted IU in December 2006, then, as I said before, there is more to this than what is been posted.

The only thing that would fit this would be if the VA granted an increase for your depression to 70%, but still had to issue a SOC because they were unable to grant the highest possible award allowed according to the rating schedule. If this happened, you would have still received a rating decision of the increase from 50% to 70%.

The VA would not grant IU soley for Major Depression being only rated at 50%. First, the Director of Compensation would proably deny it because if IU would be warrented, then, like I said before, the RVSR should have assigned a 70% or 100% rating. Secondly, even the dumbest RVSR probably wouldn't have missed this one!

In order for us to help you here on Hadit, you need to provide more information.

Vike 17