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CUE and medical evidence.


Berta
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Question

This point I made before bears repeating-----

A valid CUE rests on established medical evidence- meaning the medical evidence must have been in VA's possession at time of the alleged decision holding potential CUE.

And another point- some one- forget who- mentioned they received SSDI for the same SC disability they hve and were sttemmpting to file CUE for a better EED.

If they never advised VA of the SSDI award, and made sure they signed an authorization form for VA to get those records, the SSDI award is not going to provide them with a better EED.

Same as Voc Rehab- If the VA has stated that Voc Rehab is not feasible for you solely due to your SC diabilities, that is good evidence for TDIU, or 100% SC-

In that case the VA Should have those Voc Rehab records in their possession- because it does not matter where the VA's 'possession" of records lies but you might have to provide them with the actual documentation of the Voc Rehab denial because, as I learned the hard way, those records are not part of your medical records r your C file in many if not most cases, as Voc Rehab is a different VA department.

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Thank you for reminding us of this Berta.  Buck has an effective date question I have had trouble answering, and he wanted you.  (No wonder..everyone wants Berta to answer questions).  

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Berta, YES. 

    Buck has been discussing seeking an EED on this.  It looks good to me, but he is somewhat afraid of reductions.  Im hoping he will chime in..I have kinda helped him all I can, but I get that he trusts you.  

     Hopefully he can provide more details for you. We have emailed back and forth on this.  

     He indicates "his records are all messed up", and is confused about those, too.  I suggested he apply 38 cfr 1.579, and suggested he "ask" VA to correct any erroneous records to include those regarding conflicting effective dates.  

     If VA fails to comply with 1.579 or denies his request, then THAT is an appealable issue IMHO. 

38 cfr 1.579:  

Quote

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

 

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And don't forget about VAOPGCPREC 12-95, May 10, 1995, Clear and Unmistakable Error - Constructive Notice of VA Medical Records (M21-1 Article ID: 554400000043583)

“In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule.  That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.  Accordingly,  as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision.  The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.“

The part I underlined is classic... So much for the VA blindly claiming to have reviewed "all evidence of record"... Even if the VA creates a document, it is still considered to be part of the record, even if it is not before the adjudicator.

 

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1 hour ago, Vync said:

And don't forget about VAOPGCPREC 12-95, May 10, 1995, Clear and Unmistakable Error - Constructive Notice of VA Medical Records (M21-1 Article ID: 554400000043583)

“In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule.  That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.  Accordingly,  as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision.  The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.“

The part I underlined is classic... So much for the VA blindly claiming to have reviewed "all evidence of record"... Even if the VA creates a document, it is still considered to be part of the record, even if it is not before the adjudicator.

 

There was a recent decision about this pertaining to SMR's.   Where it stated that regardless of when SMR's appear the effective date will be the original file date.   In this decision you do not have to prove the records were before the adjudicator or not.  It does not matter. 

I am going to see if I can find this decisions. 

EDIT:  https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015778/Stowers-v.-Shinseki,-May-16,-2014,-26-Vet.App.-550

Edited by JKWilliamsSr
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I believe you mean 38 CFR. 3.156 (C)(3)as to newly discovered service records, that would mandate the VA to re open the claim and the if the claim succeeds, it would mandate the original claim date as the EED ( which would also depend on the % granted on the original date of claim,regarding the retro.

 

This BVA case shows 3.156 in action:

https://www.va.gov/vetapp18/Files1/1804907.txt

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26 minutes ago, Berta said:

I believe you mean 38 CFR. 3.156 (C)(3)as to newly discovered service records, that would mandate the VA to re open the claim and the if the claim succeeds, it would mandate the original claim date as the EED ( which would also depend on the % granted on the original date of claim,regarding the retro.

 

This BVA case shows 3.156 in action:

https://www.va.gov/vetapp18/Files1/1804907.txt

Yup that is what I meant. 

I am going to use 38 CFR. 3.156 (C)(3) in order to challenge the effective date once my claim is complete.   If that fail (which I can't see at the BVA level)..... I think I also have a CUE.   In all my denial the VA stated that there were no complaints in service for my foot disabilities.  In 2002 they denied it saying it was not well grounded because I did not provide additional information.   In 2009 they said no complaints in service.  In the denials they state that they viewed my SMR's from 1986 to 1996 (my dates of service).   I get my C-File and find clear as day the claimed disabilities in my SMR's 

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1 hour ago, JKWilliamsSr said:

There was a recent decision about this pertaining to SMR's.   Where it stated that regardless of when SMR's appear the effective date will be the original file date.   In this decision you do not have to prove the records were before the adjudicator or not.  It does not matter. 

I am going to see if I can find this decisions. 

EDIT:  https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015778/Stowers-v.-Shinseki,-May-16,-2014,-26-Vet.App.-550

In that case, the VA tried to rely on 3.156(c) to grant a later effective date and the court set them straight.

VAOPGCPREC 12-95 applies to content created by the VA or in their possession. I'm about to use it to appeal my CUE where the VA misplaced a C&P exam and brought me back for another one. Of course, in my case service records are not part of the situation. Should be fun...

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