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Question

so...............

 

I WON MY CLAIM! 

 

sorry i had to get that out one more time. i am now 100% p&t. but my eed is december 2019 instead of the original claim date. i am trying to figure out what i need to do. should i file cue? should i just file a supplemental and ask for correction without cue? should i do something i am not even thinking of that you guys know better? 

 

reason i think cue is because in my letter, the judge specially says my original claim was 2013 and dx was 2008. it seems the vro clearly ignored this. also, they didnt even use the latest appeal date. i reopened the original 2008 claim back in 2013, but was denied and appealed multiple times and the last appeal was in 2019. Ill have to go through my c-file to get exact dates but this seems a big miss to me but maybe they are getting me on loop hole here because I didn’t reopen the original claim from 2008 until 2013, after the appeal window had closed.

 

Any help or advice of course. Thanks guys for everything. I couldn’t have gotten here without your wisdom and encouragement!

 

**EDIT TO INCLUDE PREVIOUS DENIALS FOR CONVENIENCE**

 

here is the original denial:

image.thumb.png.529f7fd8b70636bfc1804b8b73d54886.png

 

here is the the reopened claim denial:

image.thumb.png.d012ffa323b1878c07094abaa9580183.png

Denial for HLR:

image.thumb.png.7d6e1ed64b09670374a7efe0455255a1.png

Denial for first CUE:

image.thumb.png.0246bd7b2dad31333a8dde5006f4b9d7.png

 

Law Jude Decision.pdf decision-letter_osa_4-20-21.pdf

Edited by blahsaysme2u
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was doing some digging...cant sleep...go figure...

anywho...

https://www.law.cornell.edu/cfr/text/38/3.156

specifically(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

 

so my limited understanding of this is that adding to my service record should kick the EED back to the original claim date in my favor. "technically" i did this, by providing an exit exam when i returned from iraq that was not previously in the record(judge specifically called out).....could i use this to push my EED? thoughts? or is an exit exam not considered "service records"-i attached top part of the exam to show it was a MEDPRO exam.

 

image.thumb.png.d5225e6bb901e481a4bc0f24c26ae289.png

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You can appeal the EED  just let them know you disagree with your EED and let them know why.& explain to them in a nice way about why your EED is not correct.  also don't forget to look and see if they paid your dependents too.  spouse/& children  that would be your dependents. parents  ect,,ect,, if they live with you.?

And congrats on your WIN..thats Great.

As for as applying for an Audit I think you just simply ask for an audit of your claim/claim's file the a and let them know why.....but as for as your EED  YOU WILL NEED TO DISAGREE WITH IT AND SHOW THEM YOUR EVIDENCE./ DATES  ECT,,ECT,, = AS YOUR EVIDENCE...if you do that  they will go back and correct it and pay you what they own you.

Here is a hadit link to how to file for an audit 

https://hadit.com/check-your-retro-ask-for-audit/

I AM NOT THAT FAMILURE WITH YOUR CLAIM  OR HOW LONG YOUR EED IS.?

..THEY DO HAVE A REGULATION THAT IF YOU LET YOUR 1 YEAR APPLEAL LIMIT PASS AND LATER ON YOU REOPEN YOUR CLAIM  YOUR EED WILL START THE DATE YOU REOPEN YOUR CLAIM..BUT THERE ARE SPECAIL CIRCUMSTANCE TOO  LIKE HARDSHIPS    EC,,,ECT,,,TO EXPITED YOUR CLAIM OR CLAIMS.

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IN THE ABOVE LINK MEMBER AND Hadit Mod ''broncovet'' CAN NARROW IT DOWN FOR YOU  HE PRETTY MUCH NAILS HOW TO APPLY FOR AN AUDIT WITH THE  VA👍

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yeah i know i need to do something i just dont know what...or if i have a case...hoping to get some input on that...or how to argue my case...

again my orgininal claim is from 2008- was denied....i didnt reopen until 2013...denied again...tried to file cue bc i was dx within 3 months of discharge- denied again..appealed to vba...won! 

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You did very well on the re open, because as I understand the downloads, you provided the VA with new and relevant material-the Buddy statements.

However I do not foresee getting a better EED:

"The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.
 
A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155.
 
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a)."
 
That first condition bears repeating:
"or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400."
 
I suggest you contact you POA about the decision because it is very difficult to prove an "entitlement" date should go further back to a better EED.
 
Perhaps they made a CUE in a past decision- meaning they had enough evidence at that time to award the claim- but that would take a very thorough review of all of your records, and every past denial you got and it might not change the EED at all.
 
I will try to find an EED claim that succeeded, on reopen to get a different date based on when "entitlement arose" than the re-opened claim date.If I find one I will post it here.
There has been lots of discussions here as well- searchable, as to the regulation 38 CFR 3.155.
 
This regulation does not apply to successful Nehmer claims. 
 
 
 
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The PDHRA has no date and no other info in the download.

We cannot tell if it has any significance at all to your EED. BUt the BVA seemed to think it was important.

Your discharge certificate is what the VA hones in on and maybe also your inservice Personnel file ( maybe they might look at that) but will look at your SMRs.

This is why I often advise vets here to get their 201 Personnel file from NARA, along with their SMRs.

If your military Personnel file reveals anything that showed what the buddys attested to, that could help get a better EED. Like did you ever get disciplined for falling asleep or being late for drills...

Also I noticed as Evidence they stated they considered your SMRs- but that is separate from your inservice Personnel file. Do you have a copy of your Personnel file?

Your POA has far more info than we can handle here-

You are correct as to the BVA statement  regarding the PDHRA, and if the VA did NOT consider that, the decision might hold a CUE .

I laid out the points I see here that can be argued as to the EED....but I do not know what is the best way to respond to the award-----your POA VSO should know, because they have access to all of the past decision etc etc.

Good for you! You took the time to find inservice buddys who could help you.

And two or more buddy statements are better than just one.Some veterans do not even consider our advice on that and often only buddy statements will alter their denials.

The entire  PHDRA document ,that BVA mentioned, and the apparent lack of having the Personnel file ( if it will help you get a better EED) are the 2 strongest points I see here,for your POA  to pursue-he/she can use the BVA decision itself ,highlighting the BVA statement on that, to file CUE on this recent decision and/or past ones,or to  take the next step -----but I don't know what that next step  would be...your historic VA denials ,etc would reveal what to do.

I am sure Broncovet and others will read the downloads and they might see something I missed and also opine here.

 

 

 

Edited by Berta
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Congratulations! 

To know for sure if you deserve an EED, would require a complete review of your cflie.  

However, given the VA's history, my money is on you deserve an eed.   It would, however, hinge on facts found:

1,  How long have you been using a cpap?  This is critical to facts found.  If you just began a cpap in 2019, then the decision is likely correct, based on facts found.  

2. Also to determine your proper effective date, I would need to know:

a.  When did you first apply?

b.  When was the first denial?

c.  Was the submission of new evidence "in the appeal period" (within a year of a previous denial)?

d.  Was the evidence you submitted : New SERVICE records, or new evidence?  NEW Serivce records should be the most favorable outcome for you, not new evidence.  You may need to appeal alleging the exit exam, documenting OSA, was new service records.  Obviously VA is taking the position your exit exam is not SERVICE records, but NEW evidence.  See 38 CFR 3.156 C and 3.156 B.   There is a vast difference between "new service records"

     If this is NEW SERVICE RECORDS, you win.  If your exit exam was when you were still "in service" (it probably was), then you should win under 3.156 C.  This would put you back to the date you first applied "but only if" you were using a cpap at that time.  

     My advice:  SEND THIS DECISION TO ABOUT 3 attorney's now, alleging a bad effetive date You can appeal without alleging cue, tho you could allege cue anytime.  I see no reason to make this harder for yourself to win, instead, file an appeal to the CAVC alleging the Board applied the wrong legal standard; your new evidence was new service records because you were in the military at the time of the exit exam.  

     The best part:  At the CAVC level, attorney fees are virtually always allowed under EAJA when you win so you should pay zero for an attorney at the CAVC.  

    DO THIS NOW.  (send the decision to 2 0r 3 attorneys (Nova attorneys, such as Hill and Ponton, CCK law, Chris Attig, etc). You have a short window to appeal a board decision, you dont have a year.  It takes time for the attorneys to review the decision, to do a fee agreement, and get your appeal to the CAVC and this has to be done quickly.    You have zero to lose by sending it to an attorney now.  

    My experience has been "most effective dates are wrong".  I had to appeal virtually every effective date my VARO or board did, and I eventually won each one.  

 

Edited by broncovet (see edit history)
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Jut to add you are right on the fact that VA might have violated 38 CFR 3.156,

and I think they violated  38 CFR 4.6 and apparently ignored the BVA PHDRA statement in just a generic BVA decision in the Evidence list.

I consider that statement to be a Legal statement by the BVA and they should answer for not acknowledging it.

I used a legal statement from BVA, in a decision I got long  ago  as I mentioned in a recent post here, very successfully -many years after that decision, but I had to get the OGC to order them to abide by the BVA statement.

I feel you and/or your POA should force them at the RO level, under a CUE, to respond to what I opined on.But Broncovet has a different approach.

To me the problem is that VA is not our enemy- Time is. I heard from a vet friend last week who finally won his claim, after about 15 years.Or more. He was at CAVC at least twice.

His greatest fear was that his wife would be unable to substitute for the claim, and pursue it- if he died, and he almost died twice.

 

 

 

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1 hour ago, Berta said:

You did very well on the re open, because as I understand the downloads, you provided the VA with new and relevant material-the Buddy statements.

However I do not foresee getting a better EED:

"The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.
 
A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155.
 
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a)."
 
That first condition bears repeating:
"or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400."
 
I suggest you contact you POA about the decision because it is very difficult to prove an "entitlement" date should go further back to a better EED.
 
Perhaps they made a CUE in a past decision- meaning they had enough evidence at that time to award the claim- but that would take a very thorough review of all of your records, and every past denial you got and it might not change the EED at all.
 
I will try to find an EED claim that succeeded, on reopen to get a different date based on when "entitlement arose" than the re-opened claim date.If I find one I will post it here.
There has been lots of discussions here as well- searchable, as to the regulation 38 CFR 3.155.
 
This regulation does not apply to successful Nehmer claims. 
 
 
 

thank you so much for your input! i always look forward to your advice. 

i do have my c-file but having trouble accessing it as my computer doesnt have cd-rom drive. so working on that. didnt know they would send it that way- dunno what i was expecting but never expected a cd-rom.

i havent gotten in touch with my vso yet. waiting on call back for next plan- though i believe lawyering up is the next step. i believe it is a cue based off that i was dx 3 months from discharge and we tried to go that route before and the va never even responded to our argument just denied it- hence the appeal. the dx was by the va. and i have used my cpap since 2008 when i was dx.

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17 minutes ago, broncovet said:

1,  How long have you been using a cpap?  This is critical to facts found.  If you just began a cpap in 2019, then the decision is likely correct, based on facts found.  

2. Also to determine your proper effective date, I would need to know:

a.  When did you first apply?

b.  When was the first denial?

c.  Was the submission of new evidence "in the appeal period" (within a year of a previous denial)?

d.  Was the evidence you submitted : New SERVICE records, or new evidence?  NEW Serivce records should be the most favorable outcome for you, not new evidence.  You may need to appeal alleging the exit exam, documenting OSA, was new service records.  Obviously VA is taking the position your exit exam is not SERVICE records, but NEW evidence.  See 38 CFR 3.156 C and 3.156 B.   There is a vast difference between "new service records"

1- since i was dx in 2008. i have never stopped. 

2- 2008 was first claim and denial

c-2013 was when i reopened the claim. i had given up previously on winning bc i felt if i couldnt win with a dx never would. my wife and i met in 2010 and she forced me to fight for my benefits; after few years i reopened the claim and started fighting again

d- the post deployment exam was the only "service record" i submited. i submitted lay statments and my osa reports from my machine proving i used it and how often etc. other than that nothing else. the exit exam is from 2008. i am not sure if its in my c-file or not but if it was it was never mentioned before in any of my previous denials- so the va may say "new evidence not new records"?

24 minutes ago, broncovet said:

DO THIS NOW.  (send the decision to 2 0r 3 attorneys (Nova attorneys, such as Hill and Ponton, CCK law, Chris Attig, etc). You have a short window to appeal a board decision, you dont have a year.  It takes time for the attorneys to review the decision, to do a fee agreement, and get your appeal to the CAVC and this has to be done quickly.    You have zero to lose by sending it to an attorney now.  

i already setup apptments with the first 2. i dont know how to contact Chris. i will do some google fu. 

Both you and @Berta give such great advice and its members like you that make hadit what it is! i wouldnt be where i am today without your sound advice and experience. 

 

once i get into my c-file ill pull my previous denials and see what evidence they actually looked and show you guys of course too!  ill keep you posted

and of course if anyone else has ideas throw em out- cuz i sure dont know where to go from here yet...either way i dont have to worry about my sc...if i win ITS A WIN if i lose well that sux and at least i tried...but i dont have to worry about my rating anymore and thats huge!

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Yeah I think it is  a CUE too!

And probably violation of 38 CFR 3.156

A CUE filed right away will draw them out with a response that might give you more ammo.

I had VA turn on a denial in 3 weeks for a few CUEs I filed within the appeal period.

One was a CUE I prepared for my daughter. VA EDU is sometimes an oxymoron.

It was a scathing CUE and got their attention right away-- 3 weeks after she signed it and mailed it to them , they awarded the proper DEA entitlement.

Also I always put Attention to and use the alphanumeric code on the decision. The alpha  is the initials of the  last RO person who worked on your claim.

But maybe VAROs stopped putting those alphanumerics on decisions.

Also I think I would also file ,after filing CUE separately, a supplemental claim too, making the same points, with the BVA decision as evidence and the PHRAD stuff as well.

My reason is that the VA is not the enemy of us claimants- TIME is.

 

 

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One more thought- Attorneys often only want to handle denied claims. You have an awarded claim.

It might take time, but not impossible,to find an attorney willing to take your case for a better EED.

Chris Attig has been at hadit before and can be contacted here or at his other site:

https://attigcurransteel.com/contact-us/

I don't understand Broncovet's advice-regarding the CAVC.

This was a recent BVA award. Please let me know what I am missing on that ,Broncovet.

I read both downloads 3 times. The BVA decision was legally sound and the BVA legal statement can be used in a CUE or on appeal.

Why would Blah  appeal this  BVA  award to the CAVC?

Just think Blahsaysme2U, those long years of denials that were not appealed, did give you a tremendous amount of knowledge about your claim

and the whole claim process, and I know it will inspire others here.

 

 

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Berta, you can appeal any issue of the board:  Denial of sc, disabiity percentage, if awarded, or, the effective date.  

If the Board "applied the wrong legal standard" then this can be appealed to the CAVC.  

The CAVC is unlikely to change "facts found", but, if the board misinterpreted the statues and awarded an improper effective date, this is an appealable issue.  

Yes, it could well be a CUE also, but Im not in a hurry to give up BOD (benefit of the doubt) with Cue, unless I have to.  

You will know more after you speak to the attorney's.  Be sure and mention your theory of eed entilement: 

There are several that I identified, that may get an eed:

1.  Failure to apply 38 CFR 3.156 C, new and material service records that should render your effective date the later of "when you first filed" or when the doc prescribed Cpap.  

2.   Claim for increase.  

      Those are 2 I identified, but dont know all the facts.  

I highly recommend you read this, and see how it applies to YOU:

https://www.hillandponton.com/correct-effective-date/

 

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so i have been contacted by H&P and cck. 

H&P told me they dont accept veterans who work?!?!?!?! well specifically who have income above 13k...so they basically told me to bugger off..

cck took my info and said they will be in touch? 

waiting to hear back from chris attig but since he was arrested yesterday------- who knows if ill get a chance to tlak to him...

 

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1 hour ago, broncovet said:

I highly recommend you read this, and see how it applies to YOU:

https://www.hillandponton.com/correct-effective-date/

IT DOES!!!! OMG your a genius sir! my exit exam whether they had it or not they never referenced it before. see quote below

This exception deals with newly discovered service department records or records that existed at the time the VA made its decision and simply did not associate with the claim.  If the claim was denied previously, but then granted on records which have recently been discovered, the regulation requires that the VA consider an effective date back to the time of the previously denied claim.

 

 In particular it states:

If the VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section…

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I hope he can sue over the arrest!!!!!!!

Maybe the arrest had nothing to do with his testimony at all -but with the Cancel culture idiots.-

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**WAS ACCIDENTLY POSTED ON WRONG THREAD**

ok i found out a few things going through my cfile

first my claim was never reopened until 2018...looks like vfw and dav both xxxxxx me and i just never noticed the claim never opened...it wasnt until 2018 when i got new VSO that claim was reopened and first new denial was sent.

here is the original denial:

image.thumb.png.529f7fd8b70636bfc1804b8b73d54886.png

 

here is the the reopened claim denial:

image.thumb.png.d012ffa323b1878c07094abaa9580183.png

Denial for HLR:

image.thumb.png.7d6e1ed64b09670374a7efe0455255a1.png

Denial for first CUE:

image.thumb.png.0246bd7b2dad31333a8dde5006f4b9d7.png

at this point we appealed to VBA and won...they still didnt use the correct EED date, even if they are using the first time i reopened the claim, which should have been june 6, 2018... so either way i need to fight the EED but i really want to try and get 2008 date when i first filed, was dx and was denied based on lack of medical records and poor c&p exam(as was stated in my decision letter that i won this year by the judge, the medical opinion showed no nexus but had no value with the other evidence)

 

along with the addition of service record in my reopened claim showing my exit exam- i think this is doable. i have contacted lawyers and still waiting on replies. i have meeting with vso this friday. Virginia provides free lawyers if they believe there is a case to be made so will see what happens.. will keep you updated. 

if you have any input in light of the denial letters i have posted, please i would love to hear it!

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well H&P turned me away bc i work.

Chisom turned me away but said i had a case just not one they could take on and said to get with my VSO to recommend another lawyer.

Attig is still reviewing. explained to their paralegal my thoughts on why i should/could fight my EED. she noticed that the judge pointing out in her opinion that the original c&p exam did not take into account an existing DX and there for the opine given was inefficient. although, all my other objections to the EED are valid, she thinks this is the most important. Thoughts? if the VARO ignored this part of the judges opinion could this push my EED back to 2008 claim that was denied with junk c&p?

my VSO thinks its a long shot. says very few people ever win EED cases and probably not worth the time and effort. i explained that the lawyer they provided for my VBA appeal recommended fighting it- so VSO told me to write up my case and he would submit. really?!?!?! 

i dont even know where to go from here other than wait on Attig. i think this might just be beyond what my VSO can do. they have done me right and helped me get SC but i think this might be above their skill set.

 

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chris attig emailed me today and said that he believes this is a CUE case and i referred me to another lawyers office that has track record for CUEs. 

i called and left vm. see what happens but im loosing hope now. even if i do have a case, i cant seem to find any help. i dont know what to do guys. 

please if you have time read my original post with the VBA judge opinion and the denials i received for my the 2008 claim, reopened claim and HLR. if anyone thinks i have a shot at this please help me figure out what i should do- im running out of time and i dont think my VSO is going to be capable of handling this one. 

thanks so much 

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