Supplemental Claim Approved- HLR for Effective Date?

[Willy P]

Good Afternoon Team,

Short back story/timeline:

• Left Active Duty: August 2015
• Diagnosed with Sleep Apnea February 2016 (6 months later)
• Submitted claim in May 2016 with my evidence: 
  • Sleep study
  • DBQ
  • In service complaint of snoring exerpt from my medical record
  • Favorable C&P Exam opinion (at least as likely as not...)
• VA Denied my claim in August 2016
• I did nothing because I didn't think I could come up with any other evidence

Fast forward to last year.....

I scratched some pennies together and paid for an IMO, then submitted the letter via a supplemental claim.  I was awarded SC for sleep apnea at 50% within a month of the VA receiving my claim.  Success!  Here is the link to that process in the research forum: 

 

So here is my line of thought...

Can I use HLR to fight for an earlier effective date, or do I have to use CUE?  I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...).  I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor.  Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?  From what I understand, I can't CUE the benefit of the doubt anyway.

Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision.  Is that possible?  I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure.

[El Train]

Was your original C&P done by VA or VA contractor?  I've never been denied a claim in which the VA or VA contractor stated 'at least as likely as not'.  Outside Dr's nexus and IME have been about 50% approval rate.  The VA sent me for C&P's for all conditions claimed.  Some agreed with the outside IME & nexus, and some did not. The ones that VA disagreed with were denied.

I think you might have a CUE if it was a VA contractor or the VA themselves.  Since they are hired VA guns.

[Willy P]

2 hours ago, El Train said:

Was your original C&P done by VA or VA contractor?  I've never been denied a claim in which the VA or VA contractor stated 'at least as likely as not'.  Outside Dr's nexus and IME have been about 50% approval rate.  The VA sent me for C&P's for all conditions claimed.  Some agreed with the outside IME & nexus, and some did not. The ones that VA disagreed with were denied.

I think you might have a CUE if it was a VA contractor or the VA themselves.  Since they are hired VA guns.

This was at a VA facility, not even a contractor.  I was amazed that I was still denied after that.  But others pointed out that maybe the rationale wasn't quite right.

[broncovet]

I can only think of a few circumstances where appealing a decision "after a year" could work.  

1.  IF you got a decision but did not get your notice of appeal rights, then the decision wont become final until a year after you get notice of appeal rights.  

2.  If you have new evidence the VA did not consider, especially new service records, you can appeal (reopen) due to N and m (now called new and relevant evidence) under 38 CFR 3.156. 

3.  If you got your decision, and, within a year submitted new evidence, they your claim should have been reopened, so, if VA doesnt reopen it, or at least send you a decision why not, your claim could be "live" and ripe for appeal.  

[Berta]

Can you scan and attach the decision here to include the Evidence List?

Cover your C file # prior to scanning it-

do I undertstand your past posts- and that you have IMOs from Dr. Bash and Dr Anaise which supports the claim?

Did you get those opinions into the RO in time after they denied you?

I guess I mean in response ( timely response) to any SOC or SSOC they sent?

If a HLR sees those opinions  you might not need to go to the BVA.

 

[Berta]

I think El Train is right from what I see in your older posts.

Folks -this is why it is best to stay in the same Thread, even if it is old....-----I have someone working on my home and can't read the  older posts until  the NOISE stops!!!!!

 

[Berta]

"Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision.  Is that possible?  I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure."

When vets post their decisions here, CUE is the First thing  I seek and I do not view CUE as the last resort if it can be the First result.

Have you scanned and attached the decision here anywhere? to include the Evidence List?

You said:

"Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?"

The rater CANNOT go against a valid VA opinion.The raters are not doctors.

Something is definitely wrong here- but without seeing the actual decision, we really dont have a clue what went wrong.

You said:

"I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor."

That is something I sure have never seen before. We often have to pay for an IMO/IME that REBUTTS the C & P examiner's opinion.