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

[blahsaysme2u]

i just dont know what to say or what to write or wether i should file a cue or file a NOD or go to CAVC or what. i am just lost. and my VSO is lost and tells me to write it up and he will submit whatever i want but he doesnt know what to do either. so either i get help here with a lil hand holding or i pay a layer 20-30% of my retro. 

i have found 3 law offices now that are willing to review my case and accept me. they are reviewing my C-file as i type. i dont know any of them very well or have heard of them before. but one 1 i was referred to by a law office here in virginia and the other 2 i found with google. one is www.legalhelpforveterans.com. has anyone used them?

anyways again i know everyone here is busy with their own claims but if i want to do this on my own without a lawyer i need a bit more help then "just do it". i have no idea where to start or what to say.

thanks again for reading and helping guys

Edited May 21, 2021 by blahsaysme2u

[blahsaysme2u]

so i found a lawyer..kinda...i got 2 different responses from 2 different lawyers...i dunno if second just didnt actually review my documents as thoroughly as the first or what but i have attached their responses. 

suggestions? should i just try this on my own with HLR or appeal on my own? im so scared to try and lose on my own. what happens if you lose at CAVC? do you get a second chance? so many questions- i have lost 30 days of my 120 time limit...so down to 90 days...got to make a decision soon! 

thanks for any help

(highlighting is mine)

sean-kendall_vet-law-usa_redact.pdf legal-help-for-veterans_law-office_redact.pdf

Edited May 27, 2021 by blahsaysme2u

[pacmanx1]

 

7 hours ago, blahsaysme2u said:

thanks for any help

OK, since you completely ignored my post, I will try to explain it one more time.

The BVA granted your service connection and returned your claim to be rated and assigned an effective date. If you re-read the BVA decision, it appears that the BVA judge accepted your 2008 evidence and granted your claim. The local VARO decided to assign your effective date the date that you reopened your claim and not the date of your favorable evidence that the judge did.  SO, INMH (IN MY HUMBLE OPINION) you can disagree with the local VARO and force your claim to go back to the BVA for them to make the final decision. In your argument/disagreement use the exact same language as your BVA grant and state that you feel that your effective date should have been the date of your original claim and the date that shows you were diagnosed and treated for sleep apnea. In your particular case, you don't even have to argue CUE just file a disagreement and request an EED.  If I am wrong or off I am quite sure others will chime in. 

 The lawyers letter.

BLAH ,BLAH, BLAH, I think you can do this without both of those lawyers, but it is still up to you.

 

Edited May 28, 2021 by pacmanx1

[blahsaysme2u]

sorry @pacmanx1, i didnt mean to seem like i ignored your post. but i apologize if i didnt see the information on how or what i should say if i do send it back? i dont know what to write. but the above is a good start i think. 

i may try a rough draft and post to see what you think. i just scared im not going to have the right lingo or arguements in place. i already was screwed out of SC for my hearing issues because i kept claiming as "hearing loss" even though i knew and the doctors knew and i had a DX of CAPD- showing not hearing loss but a hearing brain issue. but i had no idea how to file the claim. i just filed it best i knew how and the VA just said "well tough cookies, you should know better and file the correct disability"...they did give me a boost to my TBI but only back dated to 2019, even though i have been claiming hearing issues since i was in the army. 

anywho- so the email chain for Sean K. i posted my thoughts on why i deserve EED:

 

Quote

 

1) diagnosed within 3 months of discharge(possible CUE)

2) c&p exam ignored diagnosis and post deployment exam telling me symptoms were OSA likely and i needed to have sleep study done(which the judge from VBA pointed out in her opinion-Possible CUE as well)

3) i submitted service records(Post Deployment Exam) in accordance with section C of 38 CFR 3.156:

New & Material Evidence
38 CFR 3.156 is the federal regulation relating to new and material evidence.  Section (c) is far more specific than the overarching regulation and deals specifically with service department records.  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…
It then lists service records related to an event, injury, or disease in service, records forwarded by the Department of Defense or service department of the VA, or, interestingly, declassified records that could not previously be obtained because they were classified when the VA previously decided the claim.
The regulation goes on to state that when this type of “new” evidence leads to a grant of service connection, and supports the assignment of a rating, “a retroactive evaluation WILL be assigned.” When this type of record is found, it can potentially mean an effective date years or decades earlier than the recent decision.

 

 

the last bullet there, seems to be what the lawyer thinks is my best shot and you also agree...but i am still not clearly understanding if i should appeal the VBA or what? the VBA decision i agree with-why would i appeal that? arent i disagreeing with the RO and the rater that didnt apply the VBA decision correctly and ignored evidence? see i am very lost here and like i said before i need a lil hand holding and things spelled out a lil better.

5 hours ago, pacmanx1 said:

you can disagree with the local VARO and force your claim to go back to the BVA for them to make the final decision.

how do i do this? which "lane" or paperwork or forms do i use?

thanks again and i really do appreciate your help

 

[Berta]

The download from Sean Kendall seemed very positive. but of course he asked for a copy of the C file to determine the proper EED.

We cant read a whole C file here= most of them are voluminous.

The Recent VARO decision says your initial claim was filed on November 21, 2019.( Intent to file.

Have you attached on this thread the past denial letter for OSA?

That would be the decision to file CUE on using violation of 38 CFR 3.3.156, violation of 38 CFR 4.6

Was it at a ratable level when they initially denied the claim?

What appeal info did the VARO send with the decision? Did they enclose a NOD form?

 

 

 

 

[Berta]

I again went over this whole thread- and realized I am repeating myself/

The download from Sean Kendall seemed very positive.but of course he asked for a copy of the C file to determine the proper EED.

We cant read a whole C file here=- most of them are voluminous.

The Recent VARO decision says your initial claim was filed on November 21, 2019.( Intent to file.

That is incorrect and you must get that changed with a brief CUE - violations of 38 CFR 4.6.

You said you had multiple denials on this claim, and it seemed to me that the lawyers you contacted

saw the same potential we did here as well, ---3.156 violation and CUE potential on past denials,

The initial denial date would be the most favorable for a better EED, if  CUE and/or 38 CFR 4.6 is filed and succeeds. would be the decision to file CUE on using violation of 38 CFR 3.3.156, violation of 38 CFR 4.6

Was it at a ratable level when they initially denied ? We cannot tell, because that would be in your C file.

it  would give a NSC %  or higher NSC percent on the older rating sheet.

You were repped by the Virginia Department of Veterans Affairs.

I feel you should contact them and tell them what we here have suggested to file and maybe they should see the letter from Sean Kendall etc, to reveal the potential for more retro.

I hope you have a copy of your VA medical records as well or any private medical records.

There are CUE templates here at hadit, to use to get the statement above changed, because the VARO made an untrue statement. A statement that needs to be fixed.

I am sure your Vet rep can handle that.

And they should be able, with full knowledge of what is in your C file, to determine what you need to do as to the main potential of either CUE or 3.156(c) or both.

They will have full access to the older denials and the evidence list the VA used at time of denial.

I suggest you make a CD copy of the CD the VA sent with your C file info on it-if you have a good program on your PC to do that, ( I use Windows 10 to make music CDs for my car. )

for the vet rep- but he/she might have a better way to access the C file-and might not even need to because they will have the denials and the rationale for them.

But maybe the CD cannot be copied.....due to VA  reasons....someone here would now.

Others might disagree with me, that you should let the Virginia reps know you have contacted lawyers...but you haven't hired any of them. They should be able to see that your claim has great potential for more retro. The lawyers seemed to see that too.

What is the 120 deadline for- for filing with the CAVC?

I don't think the BVA made any errors in their award letter. I don't know what would be appealable to the CAVC.