EED CUE? or NOD supplemental? or *?*?*?*?*?

[blahsaysme2u]

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:

 

here is the the reopened claim denial:

Denial for HLR:

Denial for first CUE:

 

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

Edited June 8, 2021 by blahsaysme2u
upload files

[broncovet]

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 April 30, 2021 by broncovet

[Berta]

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.

 

 

 

[blahsaysme2u]

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.

[blahsaysme2u]

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!

[Berta]

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.

 

 

[Berta]

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.