Finally received my C file.

[Wanderer]

I've been awarded 100% via TDIU (70% bipolar & 30% asthma) and I seek back pay to 1997 when I submitted my first claim for bipolar disorder.

In my C file the C&P examiner states he found and lists symptoms of my mental disorder in a 1983 inpatient report of when I was hospitalized for two weeks in a psychiatric ward. Is that sufficient for a CUE claim for the start date of my disability pay?

[pacmanx1]

14 hours ago, Wanderer said:

I've been awarded 100% via TDIU (70% bipolar & 30% asthma) and I seek back pay to 1997 when I submitted my first claim for bipolar disorder.

In my C file the C&P examiner states he found and lists symptoms of my mental disorder in a 1983 inpatient report of when I was hospitalized for two weeks in a psychiatric ward. Is that sufficient for a CUE claim for the start date of my disability pay?

When did VA make this Rating Decision?

 

Did you locate these records and are they in your possession? IMHO (IN MY HUMBLE OPINION). If you are going after an EED (EARLIER EFFECTIVE DATE) it is best to submit these records along with your claim and explanation as evidence. If your rating decision is less than 1 (one) year, less than 365 days then file a TIMELY NOD (NOTICE OF DISAGREEMENT). If your decision is beyond 1 (one) year more than 365 days, then you can file a re-open claim.  Yes, you can file a CUE Claim, but CUE Claims are harder to win but are not impossible. 38 CFR 3.156 will cover all three avenues, but it would be a lot easy to win by filing a TIMELY NOD. If it is too late for filing a TIMELY NOD, then the next easiest way to win is by filing a re-open claim asking for an EED. Keep in mind that it really does not matter how you request your EED, all these claims will subject your rating to a re-evaluation.

It is your call but item 3. Below is where a lot of veterans lose their Cue Claims. I had a claim go all the way to the CAVC just to get a remand that the BVA had remanded then denied then had to grant because the CAVC agreed that the evidence in my records were sufficient and warrant service connection. Some may disagree but if you file a CUE Claim you may want to consider filing simultaneously a re-open claim because VA may disagree and deny your Cue Claim because it does not meet the criteria/standards but a re-open claim would keep the benefit of doubt and you could win that way.

Definition of CUE Claim:

1. The decision being challenged must be a “final decision” from the Regional Office or the Board of Veterans Appeals that was never appealed,
2. When the decision was made either the correct facts were not before the adjudicator or the regulatory or statutory provisions were incorrectly applied.
3. The error is “undebatable” – that is, a reasonable person would not disagree that what the VA did was incorrect.
4. The error must have made a difference in the outcome of the decision. In other words, one must show that the error cost the veteran his or her benefits. 

Now for the part that you may not want to hear. Depending on the evidence and your symptoms at the time of your original claim, VA may or may not grant you the exact rating percentage. This is known as a stage rating or Fenderson Rating. It is where the VA may grant you a lesser rating and increase your percentage over time.  In order to be granted your current rating, you would have to prove by medical evidence that you had the exact same symptoms at the time of your original claim that you had when your claim was rated at 70%

I am quite sure if my thinking is off and or crazy others will chime in, but this is how I won my earlier effective dates. 

Edited November 28, 2020 by pacmanx1

[broncovet]

Congratulations on your win!

Pacmanx is correct.  I will add here that, altho I have not reviewed your file, its possible or even likely for you to win an eed, tho that would depend on what your records show.  

My advice is you should take your cfile to a NOVA attorney, and ask him if he sees grounds for an eed.  https://www.vetadvocates.org/cpages/sustaining-members-directory   Before  you grab your CUE stick, understand that YOU can be snookered!  First, see if 38 CFR 3.156 b or 3.156 c applies if you are representing yourself.   

For example, if there was evidence in your military records that was not considered in your early denial, and that evidence was uncovered, then this suggests you submitted new and relevant evidence, and, you should get the effective date back to the date you first applied.  (new service records, 38 CFR 3.156 C)

Or, if you later submitted new evidence, such as a IMO, or other relevant evidence, then the claim date could be the date you submitted new evidence. 38 CFR 3.156 b.  

Apart from new evidence, (above), "Did you receive, in your first denial a notice of your appeal rights?"

If you have a copy of this decision and the notice of your appeal rights is missing, they may not have been sent.  In this case, your appeal period "does not begin to run" until you DO receive a notice of your appeal rights.  

(In one case I read, the VA did not have record they sent him appeal rights, so the Veteran won his effective date).

Bottom line:  You are gonna need a great lawyer, familiar with effective dates to win this.  Put your cue stick down.  While your lawyer may want to submit CUE, after reading your file, we have no idea if this is cue, but there are still great chances you win without cue.  

Edited November 28, 2020 by broncovet

[Wanderer]

Thank you so much, pacmanx and broncovet!

Pacmanx, the VA awarded me TDIU about 18 months ago and the records you asked about are in my possession- in the C file. 

You both have convinced me to go the re-open my claim route. Love having the benefit of the doubt. I'm reading an article about re-opening and it says the only way I can do so is if I present new evidence. This evidence isn't new, it's in my C file they supposedly used to make my disability award decision. Here's the link: https://ptsdlawyers.com/blog/how-to-reopen-a-va-disability-claim/.

Or, can I ignore such talk?

[pacmanx1]

Re-read your decision letter, pay close attention to the evidence used and the Reason and Bases sections. The evidence does not have to be new; they can be material, pertinent or relevant. It is evidence that was in your file but never associated with your decision which would warrant an EED. If the evidence and the Reason and Bases section does not discuss/address your hospitalization, them it was not considered in that decision.  As I stated my evidence was always in my record but my record was about 3000 pages at the time of my rating decision and I knew that there was no way in hell that the rater reviewed my entire file. These records were mostly handwritten documents but there were a few VAMC typed written reports. Even though these records were date stamped and numbered, I still made a copy of them and sent them in with my claim for EED. I did not want the new rater to claim that he/she did not know what I was talking about. I gave them all the duplicate records to make sure my claim was granted.

[kanewnut]

3 hours ago, pacmanx1 said:

As I stated my evidence was always in my record but my record was about 3000 pages at the time of my rating decision and I knew that there was no way in hell that the rater reviewed my entire file. These records were mostly handwritten documents

These are good points. My 1985 decision states no neck problem on its exam, so it was NSC. When I reapplied later I was told there was nothing in my record about a neck issue. The VA didn't know I had my own copy of my SMR's. I sent them a copied page and then they figured part of it out. I am working now on a 38 CFR 3.156(c) filing to fix some of that. 

[Wanderer]

20 hours ago, pacmanx1 said:

Re-read your decision letter, pay close attention to the evidence used and the Reason and Bases sections. 

I suppose reading the 1997 denial decision letter would also be helpful, unless that's what you mean.

(PS how do I get emailed when there is a forum reply?)