Would this be CUE?

[Buck52]

VA has me down as my EED 12/10/2002   to May 7th 2003

ok I am trying to figure out my correct EED here is what the DRO Mention in part of my records

DRO MENTION THIS

The Evidence shows you last worked in Oct 1999.

 

Entitlement to the benefits sought is established from Dec 10th 2002 the date your evaluation meets the criteria for eligibility to this benefit since you last worked prior to that date.

 

 

 

I last worked in 0ct 1999.

However I can prove with SS records the date I last worked  it was closer to 1997/98  but this is beside the point. do you see in those paragraphs  above the  CUE the  DRO Made?

 

I first filed on April 4th 1998  had to stopped working before that  but the 1998 would be fine with me if they go back to that date.

IRS Records will show I stopped working on or before 1998.  so how did the DRO know to say I last worked in 1999?  he never bothered to read my complete files  or my IRS Records.

 

  I need to find where the evidence shows I last worked in 1999...looking for that now.  but if I do find it  then 1999 would be ok to me for my EED. BUT TRYING FOR 1998 THE DATE I First Filed.

 

Ms berta/broncovet? or anyone know for sure?

 

 

 

Edited April 2, 2020 by Buck52

[Guest]

2 hours ago, Buck52 said:

VA has me down as my EED 12/10/2002   to May 7th 2003

ok I am trying to figure out my correct EED here is what the DRO Mention in part of my records

DRO MENTION THIS

The Evidence shows you last worked in Oct 1999.

 

Entitlement to the benefits sought is established from Dec 10th 2002 the date your evaluation meets the criteria for eligibility to this benefit since you last worked prior to that date.

 

 

 

I last worked in 0ct 1999.

However I can prove with SS records the date I last worked  it was closer to 1997/98  but this is beside the point. do you see in those paragraphs  above the  CUE the  DRO Made?

 

I first filed on April 4th 1998  had to stopped working before that  but the 1998 would be fine with me if they go back to that date.

IRS Records will show I stopped working on or before 1998.  so how did the DRO know to say I last worked in 1999?  he never bothered to read my complete files  or my IRS Records.

 

  I need to find where the evidence shows I last worked in 1999...looking for that now.  but if I do find it  then 1999 would be ok to me for my EED. BUT TRYING FOR 1998 THE DATE I First Filed.

 

Ms berta/broncovet? or anyone know for sure?

 

 

 

Buck, as you know many times we ask veterans for more information.

Is this a CUE? 

I understand that you are upset but for my clear understanding please slow down, remember EED is early effective date.  So to understand you were granted an effective date in 2003 and VA back dated it to 2002. Remember to get an EED beyond (BEFORE) 2002, you would need medical documentation that you could not work due to service connected disabilities.

Did you file for TDIU?

When did you file for TDIU?

Where you granted Social security and When ?

What was your rating percentage in 1999?  Just the percentage numbers.

When did you inform VA that you were not working?

When did you reach 70%?

What evidence was in your records (C-File or medical records) that proved you could not work due to service connected disabilities? 

Did you file for financial hardship?

My CUE EED was so simple and easy I really don't know how it was missed or overlook. I had three separate VAMC treatment records dated in 1998 prior to my 1998 denial yet the only evidence that VA use to deny my claim was in 1996 to 1997 way before I even filed my claim.  I finally got VA to review my entire file a low and behold CAVC made both BVA and the local VARO to redo my claim. As I said before, in 1998 my C-File could not have been that large where this evidence could hide but it hid for years form VA's sight until CAVC said the veteran's evidence is correct and VA did have the evidence in their possession. So I won my EED.

 

 

 

 

[Buck52]

Pete 992 

I BEEN THINKING ABOUT THIS EVER SINCE I REQUESTED MY C-FILE ON CD..IN 2014 

 I found these errors in dates on most all my award letters  and the DRO contradicted himself.

I' will try to explain in parts with this  so you may find something before and after not lining up  with what I write  especially the dates  because some of them are flat wrong.

I first filed in April 4th 1998, for hearing loss , was denied   NOD  was denied a rating but was service connected at 0%  1999,  ok  I was awarded 50% on march 23/2000  from a va audiologist that supposable reopen this claim .

I never knew about this 50% award until I got the award packet in the mail around april of 2000....I kept this rating (50%)  until My hearing loss got worse  so I join VA Voc Rehab  and filed for increase on my hearing 2002  and a C&P VA Examiner wrote up some lies about my hearing loss and said I was not as bad as I claim for these benefits (50%)  so he said The VA should reduce me back to 0% plus take away my service connection..

This prompt  my R.O. to send a proposal to reduce  on what this VA examiner mention in his report, they ask me (va) if I wanted to solve this dispute and I did   of course I did   anyway they gave me a DRO HEARING ON May 7th 2003. the DRO used a IMO I had on or around March 2003  to refute this examiner, and my lay statements and Notarized statements from family and friends   they used these as evidence  to warrant an increase in my hearing loss, they gave me 10% for tinnitus(as which I had been denied for in the past  since 1998) and an increase in my hearing at 30%.

resulting in a 10% and 30%increase   so with the 50%I got to keep and this increase  I was at 90%combined rating   and they used the extra schedular 38 4.16 (b) for TDIU WITH P&T  EFFECTIVE 12/10 2002  TO MAY 7TH 2003.(ABOUT 4 1/2 MONTHS RETRO .

Here is what the DRO MENTION IN MY AWARD LETTER IN PART!

Entitlement to IU is granted be cause you are unable to secure or follow a substantially gainful Occupation as a result of service connected disability, and your evaluation meets the minimum requirement to established entitlement to this benefit.

The evidence shows that you last worked in Oct 1999

ENTITLEMENT TO THE BENEFIT SOUGHT IS ESTABLISHED FROM DEC 10-2002  THE DATE YOUR EVALUATION  MEETS THIS CRITERIA FOR ELIGIBILITY TO THIS BENEFIT , SINCE YOU LAST WORK PRIOR TO THAT DATE.

I HAVE DIFFERENT DATES ON TWO DIFFERENT AWARD LETTERS   AND   AM REQUESTING A HISTORIC AUDIT REVIEW FOR THE RETRO PAID TO ME  ON THESE DATES   WHICH WAS 9.975.00$$   I AM REQUESTING THIS E.E.D.  TO GO BACK WHEN I FIRST FILED IN 1998   DUE TO MY CLAIM HAS BEEN UNDER CONTINUE PROSECUTION  SINCE 4  /4/1998.

I WILL File for 2 CUE on this   but right now just getting my evidence and cards lined up before actually filing THESE RECORDS TO SHOW, HOWEVER THE VA SHOULD HAVE ALL THE RECORDS I HAVE IN MY [POSSISSON ?

   broncovet and Ms Berta has been helping me on this  I just need to get these dates all straighten out and lined up.

later on in this same letter  the DRO Wrote

A VA EXAMINER OPINED THAT YOUR HEARING LOSS IS NOT AS GREAT AS THAT FOR THE BENEFIT YOU ARE RECEIVING , HOWEVER AFTER REVIEWING OF PRIVATE AUDIOLICAL REPORTS,AND A PERSONAL OBSERVATION AT YOUR HEARING BY A HEARING OFFICER AND A RATING  VETERANS REPRESENTATIVE (RATING SPECIALIST) AT YOUR HEARING, IT IS OBVIOUS THAT YOUR HEARING LOSS IS REAL AND AS SERVER AS SHOWN ON THE PRIVATE REPORTS .

BASED ON THESE FINDINGS ,AN INCREASE RATHER THAN A DECREASE IS WARRANTED.

 

SO THIS DRO DID HELP ME OUT  HE JUST WAS WRONG ON THE DATES  AND THIS COULD RESULT IN 4/5 6 YEARS RETRO AT THE 100% RATE LESS 50% FROM THE YEAR 2000...STILL A LOT OF RETRO.

BUT WANT TO PERFECT THIS CUE FOR HISTORICAL AUDIT  OR BOTH.

Do you see the CUE this DRO Made???

Note * this is not consider my CUE  I WILL PERFECT IT 99%BETTER BEFORE I SEND IT IN.

HOPEFULLY WITH BROCOVET HELP!  AND OTHERS HERE ON HADIT....i MAY HIRE A VA Certified  Accredited Claims Agent that lives about 30 miles from me Robert Blacklidge from Argyle Tx...but still trying to decipher all this before I talk with him or hire him.

 

Edited April 2, 2020 by Buck52

[Buck52]

pete992

I am not up-set  just frustrated in trying to put this all together. and figuring out all these different dates.

I stopped working in 1999  but I couldn't work back before 1998   IRS Records show I last worked in 1996/97  but 1998 is what I claim because this is when I first filed my claim

I got these IRS Record to use as evidence.

I never was approved for SSI because I din't have enough work credits   due to I could no longer work, so when I turn 62 I filed for retirement on the work I had did the past 30/40 years  but I had not worked 10 years prior to filing my claim  so SS Said i DIDN'T HAVE ENOUGH WORK CREDITS TO FILE FOR SSDI.

And I first filed for IU in 2001 I got the application and VA denied me.

Also another CUE because they rated my 50% on the account of a VA AUDIOLOGIST THAT SENT IN A HEARING TEST TO R.O. HE DID ON ME  BUT AFTER FURTHER INVESTIGATING THEY USED THIS HEARING TEST  TO RATE MY 50%IN 2000  AND I NOTICED ON THESE TEST  THAT THESE TEST COULD NOT BE USED FOR RATING PURPOSES.  VETERAN DID NOT PROVIDE OR COOROPRATE WITH THE TEST  (WHICH IS A LIE)i DID WHAT THEY ASK ME TO DO.  BUT SEE HOW ALL THIS IS SCREWED UP?  i KNOW i NEED TO WATCH OUT  BECAUSE THIS COULD BE REVIEWED AND A REDUCTION  BUT AS i UNDERSTAND IT  THEY CAN'T TAKE BACK WHAT THEY (VA) THEM SELF RATING ME.  OR USE THIS DRO HEARING  TO REDUCE ME.  IF UNDERSTAND THE CFR's correct?

 

example  on the tinnitus 10%  I won that and this 30% for increase on my hearing loss at this DRO Hearing on May 7tth 2003  but yet they gave me an effective date on the tinnitus on Dec 10th 2002 so that should be a CUE too!

Some say this is a typo error  but its a CUE BECAUSE IT WILL CHANGE the outcome   if reasonable minds see it my way...MY EED and my retro owed.

Edited April 2, 2020 by Buck52

[Berta]

"Entitlement to IU is granted be cause you are unable to secure or follow a substantially gainful Occupation as a result of service connected disability, and your evaluation meets the minimum requirement to established entitlement to this benefit.

The evidence shows that you last worked in Oct 1999

ENTITLEMENT TO THE BENEFIT SOUGHT IS ESTABLISHED FROM DEC 10-2002  THE DATE YOUR EVALUATION  MEETS THIS CRITERIA FOR ELIGIBILITY TO THIS BENEFIT , SINCE YOU LAST WORK PRIOR TO THAT DATE."

They are saying the medical evidence (evaluation) warranted the 10-02002 retro date.( I assume that was for the Tinnitus and hearing loss.

"TDIU WITH P&T  EFFECTIVE 12/10 2002  TO MAY 7TH 2003.(ABOUT 4 1/2 MONTHS RETRO ."

I assume ( but could be wrong,) that EED was based on the date of your TDIU application.

The only other way I know to get a better TDIU EED, is to prove you had fit into the TDIU criteria sooner, by evidence the VA already had in their possession.

The only other case I know of ( I am sure there are more) is because my husband filed for TDIU in his lifetime, and within one year of filing for a PTSD upgrade from 30% SC.

VA did not finish  that claim until after he died. They awarded an additional  year of retro posthumously and deemed him at 100% P & T due to PTSD, because they cannot award TDIU to a dead person.

They used, in their possession ,his award from SSDI solely for PTSD.So instead of a Nov 1992 date for EED, they gave him Nov 1991, as the last day he worked ,per SSA , as his EED for PTSD SC 100% P & T.

I explained it better here with the regulation......available under a search.

However in this 2019 BVA decision, they explained it Very well.

 

"CONCLUSIONS OF LAW 1. The May 2011 rating decision which denied entitlement to TDIU was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2018). 2. The criteria for an effective date of November 13, 2013 for the grant of a TDIU rating have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2018); Harper v. Brown, 10 Vet. App. 125 (1997)."

November 13, 2013 was date of his TDIU application.

"EED A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). According to 38 C.F.R. § 3.400(o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. See 38 C.F.R. § 3.400(o)(2) (2018). See also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997)."

https://www.va.gov/vetapp19/files12/19190408.txt

The whole case is a good read and the extra year of 100% P & T they awarded to my husband is explained in the above excerpt. His TDIU claim was "received within one year": etc.

Evidence of a factual increase is not limited to SSDI awards.But hard to do without SSDI award. This case was granted.

https://www.va.gov/vetapp19/files4/19124780.txt

The veteran died after he filed the claim, and the widow was found eligible for accrued with a favorable EED- although the veteran had a SSDI award- the veteran also had been turned down for Voc Rehab.

But I do not know if a VOC Rehab turned down letter is enough for a better TDIU EED.

The BVA ends this case with thi statement:

"Again, the effective date of an award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Here, the Veteran met the schedular and factual criteria for TDIU prior to October 14, 2013. Further, the Veteran’s claim for TDIU was received February 6, 2006. In giving the benefit of the doubt to the appellant, the Board finds that the Veteran had been unable to secure or maintain a substantially gainful occupation as a result of service-connected disability, throughout the appeals period and until his death. Therefore, entitlement to a TDIU prior to October 14, 2013 is granted."

If the VA had Probative medical  evidence  in their possession ,prior to the date they awarded TDIU to you, and that they should have awarded it sooner, then you would have  a CUE basis.***

I do not agree at all with the "typo suggestion"-it was probably from someone who has never won a CUE.

*** to add- the VA at first denied the 100%  TDIU claim , as accrued to me and I went right over to see his VA psyche doctor.2 things were missing from the evidence list- my husband's SSA records, and also  Dr. XXXXX 's PTSD treatment records.The Psyche was a little angry- and gave me a copy of a final analysis he had done,for the VA , and maybe for SSA as well, deeming Rod's PTSD as catastrophic ,in detail, and also, I showed him Rod's award from SSDI for PTSD.

He immediately wrote a letter to VA and sent me a copy. He attached to the letter his assessment of the veteran's PTSD that was based on hours of hypnosis ,6 specific tests, that took 2 full days at the VAMC, and also that I had shown him the SSDI award letter for PTSD with EED back to the last day he worked.

Suddenly the VA reversed their denial ,using the psychologist's letter as evidence, and sent me the accrued amount. Plus my DEA forms. I had to apply for the CHAMPA separately.

I could have filed CUE but I was SO pissed off, I went right over to the VAMC and luckily his Psychologist happened to get  on the elevator with me, and told me to come into his office and he helped me.

It is medical evidence, in VA's possession, no matter who holds the possession at VA,

that can warrant a claim for a better EED.

 

 

 

 

 

 

 

 

 

[Berta]

Maybe that widow's case should be highlighted here somewhere-

it says what I have posted here before many times.

But the BVA said, not me , so others have a legal deciion they might even need as evidence for a similar situation.

BVA cases, per se , are not evidence.

BVA "Legal" citations of established VA case law ARE evidence.   Been there ,done that.But I just use them as icing on the cake. One excerpt from a BVA decision I got ( rendered moot because I had already won the claim by fighting back the RO crap) I had to call the OGC to get the VARO to even read it.

The OGC ordered them to pay me and they did. (Refund of FTCA offset)

[Guest]

I had to break it up a little so I hope you understand. I asked those questions because I wanted others to see your response and my response so we all can get a clearer picture. The sad thing is I can only post based on your post and I do not have your file in front of me to review it.  I would suggest that you have/get someone to review and help you before you go forward.

I BEEN THINKING ABOUT THIS EVER SINCE I REQUESTED MY C-FILE ON CD..IN 2014 

 I found these errors in dates on most all my award letters  and the DRO contradicted himself.

I' will try to explain in parts with this  so you may find something before and after not lining up  with what I write  especially the dates  because some of them are flat wrong.

I first filed in April 4th 1998, for hearing loss , was denied   NOD  was denied a rating but was service connected at 0%  1999,This NOD was not denied it was actually granted at 0% . ok  I was awarded 50% on march 23/2000  from a va audiologist that supposable reopen this claim . Was this a reopen claim or was it a claim for increase?  This evidence would be very important so if I were you, I would review my file to see how it was claimed (filed) and what it says.

This prompt  my R.O. to send a proposal to reduce  on what this VA examiner mention in his report, they ask me (va) if I wanted to solve this dispute and I did   of course I did   anyway they gave me a DRO HEARING ON May 7th 2003. the DRO used a IMO I had on or around March 2003  to refute this examiner, and my lay statements and Notarized statements from family and friends   they used these as evidence  to warrant an increase in my hearing loss, they gave me 10% for tinnitus(as which I had been denied for in the past  since 1998) and an increase in my hearing at 30%. OK, you had a DRO Hearing May 7, 2003 and the DRO granted you an effective date back to December 10, 2002. This actually benefited you.

resulting in a 10% and 30%increase   so with the 50%I got to keep and this increase  I was at 90%combined rating   and they used the extra schedular 38 4.16 (b) for TDIU WITH P&T  EFFECTIVE 12/10 2002  TO MAY 7TH 2003.(ABOUT 4 1/2 MONTHS RETRO . This was probably 38 CFR 4.16 (a)

 

 

 

 

And I first filed for IU in 2001 I got the application and VA denied me. This could be a CUE EED, because you filed a TDIU claim in 2001, this could be a CUE under 38 C F R 4.16 (b)

Also another CUE because they rated my 50% on the account of a VA AUDIOLOGIST THAT SENT IN A HEARING TEST TO R.O. HE DID ON ME  BUT AFTER FURTHER INVESTIGATING THEY USED THIS HEARING TEST  TO RATE MY 50%IN 2000  AND I NOTICED ON THESE TEST  THAT THESE TEST COULD NOT BE USED FOR RATING PURPOSES.  VETERAN DID NOT PROVIDE OR COOROPRATE WITH THE TEST  (WHICH IS A LIE)i DID WHAT THEY ASK ME TO DO.  BUT SEE HOW ALL THIS IS SCREWED UP?  i KNOW i NEED TO WATCH OUT  BECAUSE THIS COULD BE REVIEWED AND A REDUCTION  BUT AS i UNDERSTAND IT  THEY CAN'T TAKE BACK WHAT THEY (VA) THEM SELF RATING ME.  OR USE THIS DRO HEARING  TO REDUCE ME.  IF UNDERSTAND THE CFR's correct?  Even though the DRO granted this rating it could still be a CUE not in your favor, due to the fact that is could be considered fraud by you receiving  benefits.

OK, before you get upset I am not accusing you of fraud just an outside look at how VA could look at your situation.

 

 

 

Edited April 3, 2020 by pete992