Possible CUE for Effective date?

[LegacyArmy]

 

I need some help with my effective date, I applied for Migraine increase on Feb 19, 2019. VA denied it. Recently looked in c-file and the C& P exam results were favorable, it was done at a VA facility by VA doctor neurologist. In the decision letter dated Jun 20, 2019, rater never gave a reason on why the exam results were disregarded. I got an independent medical opinion and filed a supplemental claim on April 10, 2020. Another C&P exam was conducted on june 24, 2020. Va approved the claim and gave an effective date of jun 24, 2020.

I believe that I can claim CUE here as the effective date should have been Feb 19 2019 since the claim was continuously pursued and rater never gave a proper explanation of why VA doctor's opinion was disregarded and if it was rated properly, I would have got 100% on May 16, 2019 when I was rated for cervical strain. and my 100% effective4 date would have been May 16, 2019 instead of Jun 24, 2020.

Do you think I have a case here? Any help is appreciated and I can send you all the decision letters if you need to look at them.

Edited July 28, 2020 by LegacyArmy (see edit history)

[Berta]

Please scan and attach  both of the  decisions here , to include the Evidence list.

Cover your C file # and name and address prior to scanning it.

We have many here who understand CUE-not just me.

It seems the cervical strain claim is part of those two decisions.

When we see the decisions we can help more.

 

[pacmanx1]

According to your post you may very well have a CUE Claim. Based on your post it is clear that you can file a disagreement which is a lot easier to win instead of filing a CUE Claim. Keep in mind that with CUE, a veteran loses the benefit of doubt. What does your medical records say about when did your migraine symptoms increase in nature?  Medical treatment records evidence could prove an even earlier effective date. Please don't get me wrong, you can file a CUE Claim but this claim decision is still within this year. I simultaneously filed a CUE Claim and a NOD at the same time for the old decision that was over a years time and beyond the time to file a NOD and then filed a NOD on my new VARO decision and won. Both types claim will grant you the same benefits you seek.

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

3.2501 Supplemental claims.

Except as otherwise provided, a claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim (see § 3.1(p)(2)) by submitting in writing or electronically a complete application (see § 3.160(a)) on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending (see § 3.160(c)) or has become finally adjudicated (see § 3.160(d)). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the agency of original jurisdiction will issue a decision finding that there was insufficient evidence to readjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed (see 3.103(c)).

(a) New and relevant evidence. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard under § 3.156(a).

(1) Definition. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.

(Authority: 38 U.S.C. 5110(a))

(a) Unless specifically provided. On basis of facts found.

(o) Increases (38 U.S.C. 5110(a) and 5110(b)(2), Pub. L. 94-71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 -

(1) General. Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. 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.

(Authority: 38 U.S.C. 501, 5101)

 

Edited July 28, 2020 by pacmanx1 (see edit history)

[broncovet]

If you do decide to file a Cue claim (instead of a regular appeal since you are in the appeal period), then you need to cite the specific regulation or regulations that vA violated which rendered it cue.  Berta often uses 38 CFR 4.6, read that one to see if it applies to you.  

[Berta]

Yes, it might apply- 

 

This article I did here might also help you-

The VCAA reference has changed, now it is the 5103 waiver-

I have a CUE regarding my 5103 waiver, but , the actual CUE was filed under 38 CFR 4.6.

Duty to Assist cannot be basis for CUE , but the resuts of the VA failed their DTA regs, can often produce a CUE basis under 38 CFR 4.6.

In re-reading this article I did some time ago, I realized I had forgotten the CUE I had to file on my AO IHD death claim, I have filed so many CUES, I was surprised that I had to file this one.

My RO has consistently failed to address my evidence in every claim I have had. SInce 1995. I have overcome all of those errors so far

My AO IHD claim was filed as soon as the AO IHD regulations came out.My RO is Buffalo NY.

They sent the claim to Togus Maine, then to some RO in Washington state, and I think somewhere else-forget- and then it was finally sent to Philadelphia to the Nehmer Division.

I received a denial right away .

 The RO said my husband showed no evidence of IHD in his SMRs.

I wrote back a scathiing CUE, reminded them of the Nehmer Court Order ( I have been involved with Agent Orange and Nehmer since 1991 and both my husband and I were in the AO Settlement Fund of long ago.)

I stated that thousands of Vietnam Veterans exposed to AO incountry were mainly KIDS when they went to Vietnam. My husband ( USMC) was sent to Vietnam in 1965-66- Ops Rolling Thunder and Starlight. He was a teenager during his TDY.

I stated also how could the Military accept these teenagers into the Military if they already had IHD?

I also sent them 38 CFR 4.6 link and asked them how many veterans or their widows were denied for a bonafide AO IHD claim, on this same ridiculous basis , because the VA raters don't know how to read.

I forgot until today ( this claim was filed I think in 2010) how furious I was at the continuous crap decisions I was getting.

Within mere weeks I got another decision-same VARO-

Awarded 6 years of AO IHD, and awards for 2 CUEs I had pending at Buffalo by then for over 7 years.

Awards for SMC S, award for my husband's 1151 100% P & T stroke.

I have 2 CUES pending -one on the Nehmer award letter , and one on a ridiculous statement the Director of Buffalo tried to get me to accept, by phone,  twice, so that they would not have apply a OGC pres op to my case.and I have requested an audit .on the Nehmer decision.

I also filed a complaint with the Inspector General -VA., the district counsel, and two of the RO directors involved.

I was tired of fighting the VA and almost decided not to fight back- but that is what they want- they want some of us to gibe up-

WE ALL MUST FIGHT BACK over  any legal errors they make and do it ASAP!

I cannot tell if the VA committed a CUE in the new members post- the decision and evidence list will reveal if they did.

I had a recent submission to the General Counsel regarding another matter, but I also gave them permission to get my C file- and told them briefly that one of their Pres Ops  has never been applied to a specific area it affects, in one of my claims. There is no documented case similar to it and the Pres Op has never been used before, in any VA case law or BVA decision I could find. It has never been altered or withdrawn by OGC and it does Not say it applies to every vet or survivor similarly situated, except for me and my husband.

The Pres Op is quite clear. But it requires someone at the VARO ,who is literate, to deal with it.And they can confirm the Pres Op with the OGC.In 1997-98 I had a converstaion with Ron Abrams, NVLSP, as an advocate and then mentioned my FTCA /1151 success. What he told me at that time, I could not understand- he said  to the affect that 'if you ever succeed with direct SC death, the VA owes you "ALL" of the compensation, for direct SC death and 1151 death.

It seemed impossible to me to do that- at the time- so I didn't ask him to clarify what he said-

but I did do that and have two direct SC death awards, and obviously he was refering to one of the most recent OGC Pres Op of 1997 ( not on line in those days.)

It clearly states the" Intent "of congress and that no veteran or their survivor will be deprived of awards under both theories of entitlement ( 1151 and direct SC).References to the monetary benefits of both contain the word "all" many times in the OGC opinion.

My AO HBP claim pending might garner another direct SC award.It better! My medical evidence is superb!

The FTCA Peer review mentioned all of my charges, to include the malpracticed HBP, and all of them contributed to my husband's untimely death.

BVA has awarded a few new AO HBP claims already. Info on that is in our AO forum here.

 

 

 

 

 

 

 

 

 

 

 

Edited July 29, 2020 by Berta
spelling (see edit history)

[LegacyArmy]

 

Thank you everyone for the responses, appreciate it!

Here are the decision letters and I am also attaching snapshots of part of the c&p exams which should have gave me a favorable rating.

Please take a look at them and let me know.

The above snapshot is from from my Migraine c& p on June 24, 2020. This is for the exam conducted after filing supplemental claim. T

 

The above snapshot is from the c&p exam conducted on March 28, 2019 and decision rendered on Jun 20, 2019. I filed the supplemental claim for this decision.

Cervical Strain VA Decision.pdf Migraines New Rating.pdf Migraines VA Decision.pdf

[pacmanx1]

 

 

1 hour ago, LegacyArmy said:

 

Thank you everyone for the responses, appreciate it!

Here are the decision letters and I am also attaching snapshots of part of the c&p exams which should have gave me a favorable rating.

Please take a look at them and let me know.

The above snapshot is from from my Migraine c& p on June 24, 2020. This is for the exam conducted after filing supplemental claim. T

 

The above snapshot is from the c&p exam conducted on March 28, 2019 and decision rendered on Jun 20, 2019. I filed the supplemental claim for this decision.

Cervical Strain VA Decision.pdf 1.03 MB · 2 downloads Migraines New Rating.pdf 2.58 MB · 1 download Migraines VA Decision.pdf 857.17 kB · 2 downloads

IMHO (In My Humbled Opinion) I would not file a CUE Claim, based on the information your symptoms fall between the 30% and the 50% rating. Keep in mind that a veteran loses benefit of doubt when filing a CUE claim and cannot be argued. With  your symptoms causing you to leave work or to miss work on the average of 1 to 2 times a month can be argued better by filing a disagreement or a new supplemental. Since this is only your C & P exams, What does your current treatment records/notes say about your symptoms?

Miscellaneous Diseases

                                                                           Rating
 

8100    Migraine:

                  With very frequent completely prostrating and prolonged attacks

                  productive of severe economic inadaptability.......................................................... 50

                  With characteristic prostrating attacks occurring on an average once

                  a month over last several months.............................................................................. 30

                  With characteristic prostrating attacks averaging one in 2 months over

                  last several months.................................................................................................... 10

                   With less frequent attacks.......................................................................................... 0

 

                                                    

 

Edited July 29, 2020 by pacmanx1 (see edit history)

[Berta]

I feel the cervical Strain EED is correct. You have only days left to file a timely NOD on that decision.

I feel the migraine EED and their decision, as to the rating, is correct.

Re opened claims get the date of the re open as the EED.

I agree with what Pacmanx said.

It pays to keep an accurate diary of migraine attacks that prevent working.Even keeping your pay stubs if they reflect a lot of lost time from work, for evidence.

Pacmanx also stated:

" What does your current treatment records/notes say about your symptoms?"

That might help support a NOD and also, if you ever have a change in the migraine meds, that too can be due to something stronger being needed for the migraines and that prescription also can be used as evidence for an increase in rating.

 

Edited July 29, 2020 by Berta (see edit history)

[LegacyArmy]

48 minutes ago, pacmanx1 said:

 

 

IMHO (In My Humbled Opinion) I would not file a CUE Claim, based on the information your symptoms fall between the 30% and the 50% rating. Keep in mind that a veteran loses benefit of doubt when filing a CUE claim and cannot be argued. With  your symptoms causing you to leave work or to miss work on the average of 1 to 2 times a month can be argued better by filing a disagreement or a new supplemental. Since this is only your C & P exams, What does your current treatment records/notes say about your symptoms?

Miscellaneous Diseases

                                                                           Rating
 

8100    Migraine:

                  With very frequent completely prostrating and prolonged attacks

                  productive of severe economic inadaptability.......................................................... 50

                  With characteristic prostrating attacks occurring on an average once

                  a month over last several months.............................................................................. 30

                  With characteristic prostrating attacks averaging one in 2 months over

                  last several months.................................................................................................... 10

                   With less frequent attacks.......................................................................................... 0

 

                                                    

 

Thanks for the response. my medical records shows medication refills and they have an MRI, CT scan which did not reveal much. For now, I take medicine and took sumatripton injections as well, which helps. that is all I have in my medical records.

I am also fine with the rating as I believe one is in Danger zone if you have highest rating for any condition, I feel that you are safer when you have low to mid level rating for any given condition.

 

[LegacyArmy]

16 minutes ago, Berta said:

I feel the cervical Strain EED is correct. You have only days left to file a timely NOD on that decision.

I feel the migraine EED and their decision, as to the rating, is correct.

Re opened claims get the date of the re open as the EED.

I agree with what Pacmanx said.

It pays to keep an accurate diary of migraine attacks that prevent working.Even keeping your pay stubs if they reflect a lot of lost time from work, for evidence.

Pacmanx also stated:

" What does your current treatment records/notes say about your symptoms?"

That might help support a NOD and also, if you ever have a change in the migraine meds, that too can be due to something stronger being needed for the migraines and that prescription also can be used as evidence.

 

Thanks for taking a look at it.

I do not disagree with my Cervical strain effective date, I believe that is right as I filed a supplemental claim  years after my original claim denial. 

I disagree with my effective date for migraines as I filed the supplemental claim well within my appeal time. But, even if they applied the same logic as my cervical strain claim, the effective date for migraines should have been April 10, 2020 not june 24, 2020.

 

May be this explains better:

Cervical strain original claim: Some time in April 2014, denied in Jun 2014, never appealed.

Cervical strain supplemental claim: May 16, 2019, decision rendered Aug 08, 2019, Effective date May 16, 2019

Migraines increase claim: Feb 19, 2019, Denied decision June 20, 2019

Migraines Supplemental claim: April 20, 2020, Approved to 30% Decision July 10, 2020, Effective date: Jun 24, 2020.

with this, don't you think that the effective date for migraines should have been Feb 19, 2019 or at least April 10, 2020 ( date when supplement claim was filed)?

II believe that it is impossible for them to argue that the condition started during c&p exam and also, the fact that they had medical evidence needed to increase the rating with the c&p exam dated march 28, 2019 itself.

 

With everyone's comments, I am leaning more towards appeal as I do not want them to touch my ratings. But, I want just figure out on what to argue in regards to the effective date.

 

 

 

[deedub75]

There seems to be an issue with this within the VA probably due to lack to training.  When I worked for the VA there were constant changes being made and we couldn't always keep up with them. 

I have claims that I've been continuously pursuing since October 2010.  It took 3+ years just to get the denial and then it sat at BVA for another 3+ years before the claims were remanded back to the VA examiner.  I'd read that remands can take forever so I opted into RAMP with a higher level review.  It was denied but since there was a duty to assist error I was allowed another HLR which was also denied.  I got a nexus letter from my orthopedic surgeon and filed a supplemental claim in February 2020.  I had C&P exams in March 2020 and my claims were quickly approved a week after the exams.  I've never seen a claim move so quickly.  Unfortunately, they made the effective date the date of the supplemental instead of going back to October 2010.  I filed another HLR for them to correct the effective date and I cited 38 CFR 3.2500(c) and 38 CFR 3.2500(h)(2).  We'll see what happens as some on the this board have had success doing so.  If not, then it's back to the BVA for them to fix it.  

 

[agcgonz]

You still have some time to go with the Notice of Dissagreement route.  It's easier than A CUE.. My suggestion is to include all the evidence as if it was a CUE in addition to NOD issues. If they deny  submit a formal appeal to BVA.  They will take final look if they disagree you  they will issue a SSOC as part of your file to the BVA.

Finally I'm not sure they will accept a CUE and the NOD  at the same time for the same disablbility-- I belive they will dismisss the CUE as premature until the NOD is resolved.

good luck.