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Berta

Question

https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/13/

Broncovet, GBA, sixthsense, all others 

You will need to read the whole thread, maybe more then once, I have read it many many times-

This vet is a Military retiree, who got a "0" SC for a GSW. in 2009 and subsequently has been awarded 40 % for it.

We believe there is at least one CUE in the 2009 decision.

If he can garner a 50% overall SC rating ( he had 20% for 2 other issues) back to a CUE on the 2009 decision, he will be eligible for more retro CRDP, perhaps back to 2013 ( or when the CRDP regs became law.)

The pdf is still here somewhere on the 2009 decision-in this thread I hope-  if not  have it in pdf but cloud is affecting my internet-----cant attach

The veteran is doing all he can to understand  VAOLA and is getting quite up to speed very fast-that is Very commendable because this is all overwhelming not only to him but to me as well...takes a lot of reading and thinking- but that is how claims succeed.

The 10% SC vet retiree I mentioned in the thread is my neighbor and has griped to me many times (since 1998) that the ten is too low because he said he gets SSDI solely for the 10%. He has never shown me his SSDI award and wanted me to prepare a TDIU claim for him- no way Jose----

He has a vet rep on his POA , kept forgetting to show me his SSDI award,and his decision  thought I could perform a miracle without it, but I have no supernatural power

and I don't hold hands.  

My point on that is this is a veteran WILLING to do the legwork-some vets, as many of you have learned, won't do what they need to do and we cant do it for them.

 

 

 

Edited by Berta
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I added my 2 cents worth to the post, Berta.  Frankly it shouted "3.156" (reopen due to new and relevant evidence) to me.  

Its not CUE, as far as I know, for VA to NOT have all the records.  Its 3.156.  Of course, there still could be CUE.  Its entirely possible, or even likely, that VA made outcome determinative, undebatable error.  
I generally refrain from "interpreting the Veterans interpretation" of his file, because my advice, then, can be no better than the Vets interpretation.  Its like making a copy of a copy of a copy.  The copy degrades a bit, but cant be better than the "original copy".  Even worse would be trying to copy "the Veterans recollection" of the original.  

Instead, when possible, I interpret "the decisions and file". EVERY attorney I spoke to wanted to see the decision.  NONE would "interpret" what I had already interpreted.  They wanted to see the original decision, not my summary/synopsis of the decision, and rightly so.  

Edited by broncovet
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Broncovet . the veteran is not going to pursue CUE- but perhaps he should consider your suggestion on 38 CFR 3.156.

"Its not CUE, as far as I know, for VA to NOT have all the records."

In this case it seems the VA failed to address a signed authorization  form to get significant medical records which, I believe, would have been highly probative and could have given a better residual rendition than  what the VA C & P examiner did.

I considered their failure as a violation of 38 CFR 4.6.

I hope you can help this vet under the 38 CFR 3.156 basis.

I thought he said ( I could be wrong) that he had no new and relevant evidence...but he mentioned some family buddy letters I think.

If the MEDDAC and surgical hospital records could be obtained, that would be "new and relevant" evidence.

I am not as well versed as you are in 38 CFR 3.156 claims.

 

 

Edited by Berta
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In this recent October 2020 BVA case:

https://www.va.gov/vetapp20/files10/20068374.txt

In part:

"On July 31, 2002, VA received a request to reopen the claim of entitlement to service connection for PTSD. For applications to reopen, such as this, received on or after August 29, 2001, a claim shall be reopened and reviewed if “new and material” evidence is presented or secured with respect to a claim that is final. Evidence is considered “new” if it was not of record at the time of the last final disallowance of the claim. “Material” evidence is evidence that relates to an unestablished 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 and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In May 2003, the RO requested the Veteran’s entire personnel file. This request was filled in June 2003."

and 

"ORDER An effective date of March 3, 1994, but no earlier, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD) based on a finding of clear and unmistakable error (CUE) in a March 2005 rating decision is granted. FINDING OF FACT The March 2005 rating decision that assigned an effective date of July 31, 2002, for the award of service connection for PTSD contained clear and unmistakable error which compels the conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. CONCLUSION OF LAW The criteria for an effective date of March 3, 1994, but no earlier, for the grant of entitlement to service connection for PTSD based on a finding of CUE in a March 2005 rating decision have been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. §§ 3.105(a), 3.156(c), 3.303, 3.400."

 

The veteran used 38 CFR 3.156 as well as CUE to be properly rated.

The 38 CFR 3.156 re open provided the info the VA should have considered back to his original claim:

"As noted in Mayhue, a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim. Both the Veteran and the Board have identified March 3, 1994, as the date of VA’s receipt of his original service connection claim. (See May 2015 fax from Veteran’s accredited representative.) (continued on next page) Therefore, entitlement to a date of March 3, 1994, but no earlier, for the grant of service connection for PTSD is warranted. The appeal is granted."

EED :MARCH 3, 1994 !!!!! A nice chunk of retro-

A successful reopen ( as in this case-that garnered a good EED)-can then pave the way for a successful CUE and more retro.

A very detailed case- It shows Nothing is impossible.

 

 

 

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38 cfr 3.156 has been updated.  I probably provided the "old" 3.156, which is inaccurate.  (on my part).  https://www.law.cornell.edu/cfr/text/38/3.156.  There are differences between old and new 3.156, notice the new one has section "D", which the old 3.156 had no "section D".  

The newer regulation is a "liberalization" law, with a less stringent defination of "material" vs "relevant".  

The 2 major portions of 3.156 are very different.  "3.156 B" (pending claim) and 3.156 C (NEW SERVICE RECORDS).  

By far, the most beneficial to the Vet is 3.156 C. 

3.156 B, however, only gives an effective date back to the date the new evidence was submitted, not to the beginning of the appeal period, like 3.156 C. 

Often, however, attorney's look to see if you submitted new evidence WITHIN 12 months of the decision.  If so, this means its a "pending claim" and your evidence submitted on a pending claim goes back to the beginning of the claim.  

This Vet should also check to see if he submitted new evidence "within 365 days" of the VARO decision.  If the VA did "not" reopen that claim, then its still pending.  See the pending claim doctrine.  

Under 38 CFR 3.103, the VA "owes the Veteran" (my words) a written decision.  Read it yourself:  https://www.law.cornell.edu/cfr/text/38/3.103

So, if the Veteran submits "new evidence" and the vA never ajuticated "whether or not" the evidence submitted was determined to be "new and relevant" then that claim is still pending, because the Veteran never got a decision.  

The question of "whether or not" the evidence submitted meets the criteria to reopen in 3.156 is a determination which needs to be made with a written decision adjuticating the issue.  The VA can decide, "no, the evidence you resubmitted was not "new" or it was not relevant, or it can reopen, and award, or deny the claim.  This gives the Veteran a chance to appeal this decision. also, within 12 months.  

But, if VA "never reopened the claim", the sharp claimant or lawyer can take action to at least compel the VA to "decide" whether or not the new evidence submitted was sufficient to meet 3.156 criteria.  

If the claim is "open" (pending), then the Veteran or his attorney can put pressure on the VA to adjuticate it, and, to appeal it if VA says, "ok, we reopened your claim and the answer is no, your evidence was insufficient to reopen" so its denied.  

But, if that claim is open, when awarded, the effective date should still be the later of the facts found or the claim date, with some exceptions.  

Mostly, both 38 cfr 3.156, appeals, and Cue boil down to the "effective date".  

Why?  Well if the effective date was not an issue, the Veteran can simply re apply.  

It my opinion to view Cue as a "standard of review", as opposed to thinking its an "error".  There are many errors which are not CUE, because they dont meet the criteria of the "CUE" standard of review:  

a). Alleged error must be undebatable, (no benefit of the doubt).  

b).  Alleged error must be outcome determinative, 

c)    Alleged error must be based on the evidence and regualations "at the time of decision".   A change in regulations or evidence, is dealt with under a different regulatory framework, not in CUE.  

    Just like the Caluza elements, if you dont meet all three aspects of CUE, then it fails.  

 

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I will at least try one more time. Forget about the 2009 claim/rating decision for a few minutes, forget about the diagnostic code VA assigned to this rating. Follow the symptoms, VA disability is based on the symptoms that veterans have. We know that the veteran was shot in 2001. The veteran filed a claim in 2009, so what symptoms did the veteran have in 2009? We know that the veteran filed a claim in 2009 and was granted a 0%. The veteran contacted DAV on March 11, 2020 and the DAV reopened his claim. This claim was then processed and granted by VA on November 25, 2020. Instead of filing a CUE claim, if the veteran can prove by medical evidence that he had the same symptoms in 2009 then the veteran can simply file an NOD (NOTICE OF DISAGREEMENT) requesting an EED (EARLIER EFFECTIVE DATE) based on material or pertinent evidence. If the veteran can prove by medical evidence that he should have received a higher rating then that is the right way to attack his effective date, no need to file a CUE claim. A CUE may not have been made in 2009 rating decision but what about the November 2020 rating decision. Still, no need to file a CUE when a veteran can file a timely NOD requesting an EED. Remember Cues are harder to win but filing a timely NOD can get the veteran the same benefits.

The DAV mentioned filing a supplemental claim, under the new DRR (DECISION REVIEW REQUEST) the veteran could reopen his claim based on material/pertinent evidence that was in the veterans file but never associated or adjudicated with the November 25, 2020 rating decision. So, the veteran can still seek an EED back to 2009 without filing a CUE claim. The claim to file an NOD on is the November 25, 2020 Rating Decision.  The veteran has one (1) full year to file an NOD.

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