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.

[Berta]

After reading this past post you made , I feel my CUE post might not help at all Broncovet is right!

"Today I received the decision letter.  50% granted for sleep apnea, effective 1/04/2020 for a payment effective date of 2/01/2020.

Now the only thing left to answer is "how" I can request earlier effective date.

To summarize: I missed the appeals window of the 2016 denial.

The IMO was the only new evidence submitted with the supplemental claim.  The IMO used the same evidence to concur with the C&P examiner's opinion.

Is there another avenue besides CUE to request the earlier effective date?

What is the exact wording of their decision above, as to the January 4 2020 EED they gave you?

"I missed the appeals window of the 2016 denial."

You might have to re open that 2016 denied claim....as Broncovet said above...he is right-----

Did they deny in the 2016 decision because they did not have the IMOs yet?

I think the EED they gave you on the new decision is correct as they said it was the date of the claim you filed.

I will try to find your other past posts but with the post above I found it clarified a lot to me.

And I am still not sure I have interpreted your issue correctly. 

 

 

[Willy P]

Well I have an interesting update now...

Yesterday 6/27 I received my informal phone conference that I requested for the HLR.  The senior rater Agreed with my statement in the HLR that the 2016 denial was in fact a mistake.

He made two points:

1) The denial letter I received stated that there was no evidence in service.  This is incorrect because I did in fact complain of sleep problems and snoring during active duty.

2) The rater should not have overruled the VA examiner.

This is exactly what I was hoping for- the senior reviewer went back and looked at all the details in the 2016 claim and found the error.  I honestly thought I had little to no chance of getting this decision, but I'm glad I went this route.

Great day yesterday!

[Berta]

I see my post yesterday did not go through-???

This is exactly what HRL is for- to find legal errors , and any other errors, before the decision is finalized.

Asking for HRL review, and/or filing CUE on a recent decision, if successful- will take YEARS off the claims.

I see many cases at the BVA that never should have been there----on remand for what the RO should have done in the first place. A CUE on the RO decision might have changed that picture significantly for some of those veterans.

I am glad you took that "route" too.

CUE should never be viewed at as a "last resort'- it should be the first thing in a decision ,that the claimant seeks.I say "claimant" because many VSOs and reps and even lawyers who rep vets do not really know what CUE is- in my opinion.

And even if a lawyer or agent saw a CUE in recent denial, they might never raise the issue to the veteran because they wont make much money unless the vet goes to the BVA.

CUE is explained in the CUE forum ad finitum.....I think they are the easiest claims of all, in most cases.Particularly when the decision is recent ( within the one year NOD period)

They should be filed ASAP on any recent decision that you believe contains CUE.

 

 

 

 

 

 

 

 

[LightofSolitude]

11 hours ago, Berta said:

CUE should never be viewed at as a "last resort'- it should be the first thing in a decision ,that the claimant seeks.

I agree 100% with this statement. There are a lot of veteran's out there that may be intimidated by CUE's and it is totally unnecessary. The VA is not going to get away with making any legal error(s) in any one of my claims as long as there is breath in my body. Excellent advice Mrs. Berta!!!

[Michael Gonzales]

On 2/13/2020 at 10:26 AM, Willy P said:

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.

Please, excuse me but I read your intent in regards to a CUE. Therefore, you can submit a CUE two ways: 1. In writing but your pleading ( reason your claiming CUE) and or 2. Raise CUE through HLR to review. A CUE is not a claim and CV annot be submitted on a supplemental claim form, remember, supplemental  claim requires new and material and a CUE is a collateral attack of erred error on statutory and regulatory statute. Benefit of doubt is not grounds for CUE just Google " Benefit of doubt" CUE and you can read case law on the subject I learned the hard way.

[Willy P]

1 hour ago, Michael Gonzales said:

Please, excuse me but I read your intent in regards to a CUE. Therefore, you can submit a CUE two ways: 1. In writing but your pleading ( reason your claiming CUE) and or 2. Raise CUE through HLR to review. A CUE is not a claim and CV annot be submitted on a supplemental claim form, remember, supplemental  claim requires new and material and a CUE is a collateral attack of erred error on statutory and regulatory statute. Benefit of doubt is not grounds for CUE just Google " Benefit of doubt" CUE and you can read case law on the subject I learned the hard way.

Right, my original intent was to use CUE as a last resort and simply file a HLR to get them to look at the effective date.  Basically I only wrote a sentence or two on the HLR form talking about my situation.  In my case it worked out favorably, but I think I got lucky with my reviewer to be honest.  I thought that benefit of doubt should definitely apply, but since you can't argue that in CUE maybe the VA could CUE itself, if that makes sense...