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

[Berta]

Pacman X it might have been Clemons V Shinseki- that might help here- I have to shut down ,draw well water, and get out my flashlights- we have been getting major thunderstorms here for past week.I expect to lose power again....I live high up on the Allegheny Mountain Plateau.Spectacular views. I Love NY.

I recall I posted the info you were interested in not long ago at hadit- but cannot remember what I postd or where I posted it....will check the CAVC Clemons case tomorrow-.

 

 

 

[Berta]

Clemons V Shinseki is why I say here sometims that a veteran should not lock themsekves into a PTSD clai m, unless they already have a solid PTSD diagnosis ,because  the medical evidence might reveal an anxiety disorder, deprssion, or any other MH issue that is technically not a PTSD situation yet can be found to have a service nexus.

The rating criteria is the same for all MH issues.

But Clemons applies to isues which are NIT MH as well.

Clemons  is interpreted by the BVA here:

"Moreover, throughout the pendency of this appeal, the RO has 
adjudicated this claim as one of service connection for right 
cluster headaches.  However, the record indicates that this 
diagnosis is questionable, as the most recent treatment records 
note diagnoses for migraines.  Therefore, the Board finds that 
the claim should be classified as one of service connection for a 
headache disability.  See Clemons v. Shinseki, 23 Vet. App. 1 
(2009) (stating that the scope of a health disability claim 
includes any disability that may reasonably be encompassed by the 
claimant's description of the claim, reported symptoms, and the 
other information of record)."

and 

"Resolving reasonable doubt in the Veteran's favor, a headache disability was incurred during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010)."

https://www.va.gov/vetapp11/Files1/1101052.txt

So Clemons might be applicable to your claim---for a better EED but it is the wording of their decisions, and the evidence, in my opinion, that will provide the info to determine how you should approach this.

Fibromyalgia has been in the past very difficult to diagnose.

Often the symptoms are similar to other diabilities.

Under a CUE you could not use an IMO/IME to support the CUE, but as Broncovet said there are other ways such as 3.156 to gain a better EED, and that type of re opened claim might well need an IMO/IME.

[broncovet]

Yes, Clemons vs Shinseki might be what you need, as Berta suggested.  Here is what VA says about it:

Source:  https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015190/Clemons-v.-Shinseki,-Feb-17,-2009,-23-Vet.App.-1

Quote

The Court held that a service connection claim that only identifies post traumatic stress disorder (PTSD) cannot only be limited to that diagnosis, but must be considered a claim for any mental disability that may be reasonably raised by several factors, to include the veteran’s description of the claim and/or symptoms and any information and evidence submitted by the veteran or obtained by VA.

The Court explained that because a veteran was reasonably requesting benefits for symptoms of a mental condition that he was not competent to medically identify, the adjudication of the claim does not end in the face of currently diagnosed mental conditions that are different from his lay hypothesis on the claim form. The Court noted that it is generally within the province of medical professionals to diagnose or label a mental condition, not the claimant.

Impact on VBA:

A Manual change may be required to clarify the “Making a Decision” table at M21-1MR III.iv.4.H.32.j, which currently states “If… ‘a VA medical examination fails to establish a diagnosis of PTSD’… ‘Then…deny the claim on that basis’.” This instruction will need to be revised to ensure that any co-existing mental condition identified by the evidence be considered and a determination of service connection be made. The Office of General Counsel has noted that it is filing many Joint Motions for Remand, based on the holding in this case, for approval by the Court.

I have been through (and eventually won) multiple effective date appeals.  They are not easy!  

Having hired several attorney's, it often happens that "something other than what I thought of" eventually wins the eed.  

For that reason, I would humbly suggest you take your cfile to a place like CCK law..and just "see" if they see an EED.  It costs you zero for their initial consultation.  Even if they offer representation, you are not obligated to accept it, but you can use their idea to win benefits representing yourself.!

Edited June 24, 2020 by broncovet

[pacmanx1]

Yes, I am betting on that along with 38 CFR 3.156 and 3.157 VAMC medical records that I recently found in gathering evidence of my upcoming sleep apnea claim. Bronco, I recently won an EED claim that is very similar in the effect that VA had evidence in their possession that showed I not only had a diagnosis but I was treated by VA but this evidence was not used or considered and was granted a EED.  It seems that there are times when a veteran finds a CUE claim in his/her records that there is most likely more than one. 

 

Ms. Berta, I also won my migraine service connection with Clemons vs  Shenseki. 

Thanks so much, on the right track

Edited June 24, 2020 by pacmanx1