Appeal effective date

[Douglas]

Does appealing the effective date of a decision open the rating percent up for reduction?

Edited May 20, 2019 by Douglas
Misspelling

[Berta]

They can try to reduce a rating whether a vet reopens their claim ,files a new claim , during a Re-elavuation they (VA) ordered, or on a whim, unsupported by any of the evidence...I helped my husband with the latter-

they proposed to reduce and I used their very own regulations they used for the reduction proposal , against them, to get the reduction proposal overturned, with a Strong NOD I wrote.

But I would not hesitate to file for a better EED. If we know more, we can help more.

An EED claim usually involves these regulations 38 CFR 3.156 , or CUE.

There are many claims here regarding a better EED.

[Berta]

There is good info in this thread on 3.156 claims:

https://community.hadit.com/topic/48552-svr-show-follow-up-to-38-cfr-3156-c/page/3/

and this started out as a 3.156 claim but instead was a CUE with mega retro:

 

Mega

[FormerMember]

I must politely dissent with my esteemed colleague's assessment above. §3.156(c)(1) is  unequivocal in it's instructions:

 Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, 

My disagreement is elementary- a claim remains pending until there is some concrete evidence it has been addressed and decided. Here, the mere association of the STRs belatedly to a claims file automatically triggers §3.156(c) as a freestanding claim and it cannot be CUE because the reconsideration  which shall be accorded under  §3.156(c) hasn't occurred yet. One could characterize it as a chicken before the egg conundrum.

Granted, I've been forced to refile these as CUE to get them changed and even had to go to the BVA to do it. I get that. No DRO wants a ginormous six-figure 156c retro payout on their resume. Better to kite it up to the BVA and let them suck on that egg. The M 21 is a good advisory on this. The say you can file it on SF 8.5 X 11 (white). SF 8.5x11 stands for standard form 8.5 inches by 11 inches white computer paper-typed or hand written.

I got this from my VA Change Management Agent ( I call her Supergirl) this morning. I had a CUE kicked out of VBMS  last week because I used a 526 instead of a 20-0995. Okay, how can you use the supplemental claim with CUE? By operation of law, you cannot add new evidence to a CUE. filing, so.... Here's her response.

 

1. You do not need a form for a CUE. Are you wanting to file a Supplemental Claim? Then you would need new evidence, but not for a CUE.

                        III.ii.2.B.1.c.  Benefit Requests Not Requiring a Prescribed Form  prescribed claim form is not required for requests for

·                   review based on clear and unmistakable error (CUE)

·                   substitution

·                   a finding of incompetency received from a first or third party, and

·                   removal of a dependent.

Anyway. to me an EED due to a §3.156(C) error requires a decision in the first instance and for finality to attach with no appeal. CUE might ensue after an adjudication of the applicability of §3.156(c)(3),(4) but not until there is an actual, promulgated decision. I'm sure Berta can understand the legal nuance I'm implying here.

Semantically, the legal standard of review of a Motion to Revise (CUE) requires a fait accompli. Absent a reconsideration first- up or down- there can't be a CUE yet. A reconsideration is a powerful tool. If you were granted claims recently that you filed for 40 years ago and VA grants, you get to carry that back  40 years- assuming, arguendo, you can show your degree of disability arose then. CUE requires you go down the harsher  road. That's a much higher bar to clear. Quite frankly, you are precluded from arguing how the evidence was weighed or decided in a CUE.

Certainly, the evidence in the old STRs should fall into the " the evidence, as it was known, wasn't before the adjudicator" clause of CUE, but again, a reconsideration is not required to pass the next qualifier of CUE- i.e. 'manifestly changed the outcome" codicil in §3.105. Thus, I disagree with the applicability of the CUE standard of review. I filed this argument in a 2015 brief and  VLJ Vito Clementi agreed with my legal standard of review argument. I also would say it depends on which judge you get as to how they would legally characterize this point of law. There are definitely two schools of thought on the subject-maybe more...

[Buck52]

Great Information Alex

*when I learn to decipher it all out*

Thanks my friend.

Edited May 21, 2019 by Buck52

[broncovet]

CUE, and 38 CFR 3.156, contrary to popular belief, are not "the only" methods of winning an EED.  

For example, VA often overlooks it when the Veteran applies for benefits within a year of exit from  service.  

38 5110 explains it this way:

Quote

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

Or, in the case of an increase USC 5110 permits up to a year's retro:

Quote

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

 

[Buck52]

I would say or just my opinion   when most of us old Vietnam dogs got out in the late 60's early 70's  Most of us never knew about these claims and was never considered disable due to our condition or diseases that arose years later  ..if a veterans condition was due to his military service  in my opinion that should be his EED not the date he first filed.

In my opinion this is why they have these regulations broncovet  has posted   filing within 1 year after you leave the military.

so you newer veterans or G WAR vets  be sure to file within one year if you have any conditions that can be service connected.