CUE OR REOPEN OR JUST OUT OF LUCK

[pacmanx1]

Just trying to get my mind clear on something, I know a veteran cannot file a CUE claim on a change of diagnosis but can a veteran file a claim of CUE when the veteran filed a non-specific diagnosed condition.  OK, here is the scenario, a veteran filed a claim for multiple joint pain in 2000. VA processes the claim and denied the claim in 2000.  Veteran finds VAMC medical records of veteran being diagnosis and treated for fibromyalgia in 2000 all within the same year of applying and being denied.   Even if the veteran cannot claim CUE, the veteran should be able to reopen the claim for a better effective date due to 38 CFR 3.157. Yes,  I know that VA has removed this regulation but it was in affect back in 2000 and should be considered.  The veteran should also be able to reopen and use 38 CFR 3.156 to get a better effective date.  VA denied the veteran's claim in 2000 but later granted the veteran service connected Fibromyalgia years later? 

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of Sec. 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.(Authority: 38 U.S.C. 5110(a))

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.(Authority: 38 U.S.C. 501)

Edited June 23, 2020 by pacmanx1

[Buck52]

This EED stuff is confusing,

Here is another question  maybe to help answer Pacmanx1 question?

THEY (VA) SAY

''(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later''

ok say the veteran files his claim on April 4th 1998...was denied,

vet files NOD withing a year and was denied again, ok in June 2000 the vet  Dr reopens his claim and is granted 50%..all is good but does this or should this bring his EED to June 2000 or back to April 4th 1998 when he first filed?

He recieved no retro for the 50%.

 Ok lets keep going

After this vet was granted to 50% he got in the Voc-Rehab program and also the ILP Program and was given things to make his life better , and the Voc Rehab councilor could not find anything this veteran could do (JOBS) so he recommended to the veteran to file for increase and ask for the TDIU, due to his S.C. disability .

The Vet filed for increase  Dec 20-2002  and was granted a 10% tinnitus increase which brought his 50% rating up to 60% which back then vet]s had to be rated 60% to qualify for the IU...

Ok the vet got another 30%increase on his S.C.disability  made him combined rating at 90% and was given TDIU P&T  THIS WAS IN 2003...SHOULD THE VETERAN EED go back to when he first filed in 1998?

WHAT IS CONFUSING IF THEY DAY THE EED STARTS THE DATE OF APPLICATION  THEN IS REPEDEADLY DENIED AND VETERAN FINALLY WINS IN MAY 7TH 2003......AND HE FIRST FILED FOR THIS IN 1998...THEN HIS EED SHOULD BE THE DATE HE FIRST FILED   IN 1998.

CORRECT?

This happen to me   when I got the TDIU P&T BACK IN MAY 7TH2003   MY RETRO WAS  LIKE THIS  they went back to Dec 2002 the date I filed for the increase  and I was awarded retro BACK TO DEC 20 2002  TO mAY 7TH 2003  ABOUT 5 MONTHS OF RETRO AT 100% IT WAS ABOUT 9,975.00...MY ARGUMENT IS THEY SHOULD HAVE WENT BACK TO April 4th 1998  the date I first filed.

If they mean when entitlement first arose does that mean their saying when he wins his claim? or when his disability was first noted in his medical records? or when he was first service connected? BECAUSE IF THEY MEAN WHEN HIS DISABILITY FIRST AROSE  THAT WOULD MEAN TO ME WHEN HE FIRST CAME DOWN WITH HIS DISABILITY AND THAT WOULD CERTAINLY GIVE HIM A BETTER EED.

 Anyone know the answers?

Edited June 23, 2020 by Buck52

[Berta]

Pac man, is this regarding s claim you had or are you asking for another veteran?

In any event can you scan and attach the 2000 decision here? (Cover C file # prior to scanning it)

Could we also see this decision too?

 VA denied the veteran's claim in 2000 but later granted the veteran service connected Fibromyalgia years later? 

And evidence list for both---

There is a regulation that says to the affect that a vet might claim something, but due to their lack of medical knowledge, the claimed diagnosis they used might well become a  valid SC diagnosis.

I posted this info here long ago---- will try to find it.

Was this a Gulf War Veteran?

 

 

[Berta]

Buck said:

"ok say the veteran files his claim in 1998...was denied, vet files NOD withing a year and was denied again, ok in 2000 the vet  Dr reopens his claim and is granted 50%..all is good but does this or should this bring his EED to 2000 or back to April 4th 1998 when he first filed?"

We would need to see those decisions,showing us  what was claimed and when,  and the Evidence list they used, to try to determine what the EED should be.

The 50% might not have been a potential rating in 1998  based on the medical evidence VA had.

It seems the Re opened claim of 2000 was rated and awarded  but I do not understand why you feel the EED should be 2000----- isn't it already ?

[pacmanx1]

Ms. Berta, the op (Original Post) is claims that I had filed years ago. Recently talking to my doctor, just got a letter connecting my sleep apnea to my fibromyalgia.  In reviewing my records I found where I was first diagnosis with fibromyalgia. I was being treated for chronic pain, arthalgia, polyalgia,  psoriatic arthritis and a host of muscle and nerve problems.   I will have to look for those ratings but the kick is, I am very interested in the statement that you said about a veteran not knowing medical terminology and when a veteran files a claim, VA has a duty to assist the veteran.  No not gulf war related. I am direct service connected due to my SMRs medical records.  While in the military I contracted a nasty viral respiratory/digestive infection that put me in the hospital for weeks. Not sure what happened but the symptoms never went away and I still suffer from the same conditions today.  Unfortunately from time to time I am hospitalized for a respiratory/digestive virus that comes and goes for no reason at all.   It just surprised me when looking through my records, I found my VAMC treatment records.  A VAMC rheumatologist diagnosed me with fibromyalgia.   I am still waiting for a BVA EED back to 1998. Buck, sorry but right now I can't even wrap my head around this new puzzle of mine. I do know the fact that when VA granted my fibromyalgia claim they should have used the effective date of my VAMC treatment records under 38 CFR 3.157 because this evidence was in the VA possession and it is well ascertainable that they should have found it. 

[pacmanx1]

OK I know what happened but not sure of my next step.  It appears that I filed a claim for multiple joint pain in or around 1999-2000 and my claim was rated and denied in February 2000.  I did not file a NOD. I was then diagnosed with fibromyalgia by my treating Rheumatologist in September 2000.  I reopened my claim and filed for fibromyalgia secondary to mental between 2006-2007 and it was granted. Still looking through records to find more golden nuggets

[broncovet]

Cue or reopen, are not "the only ways" to win an EED.  They are important, but one of these may be more important.  As you already pointed out (informal claims for increase, 38 CFR 3.157) can result in an EED.   To win that one, you have to meet "the other prong" of the effective date rule:

The later of these 2:

1.  Claim date.  An informal claim can establish the date of claim.  

2.  Facts found.  This is usually the date the doc said you were disabled.  

      It wont do any good to get an earlier "claim date" if the facts found dont also support an EED.  

Here are some other ways to win an EED:

1.  You applied within a year of exit from service.  

2.  You meet criteria for Nehmer.

3.  Read these over to see if any apply to you:

https://www.law.cornell.edu/uscode/text/38/5110