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

[Berta]

I might have forgotten to ask- what appeal advice or forms  did the VARO enclose  with their award letter.

And I do not understand this:

You said:

"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."

The DX was in 2008, did you actually file a claim in 2008. too?

These are questions for the vet rep to answer.

Or you could send Kendall the info for his opinion on whether he could  represent you.

 

 

 

Edited May 28, 2021 by Berta

[pacmanx1]

I do agree that the veteran has a CUE claim but filing a timely NOD is much easier. Since this claim was recently appealed after the veteran filed a VA form 10182 January 2020, all he has to do is to file a new VA form 10182 and request that the BVA grants his Effective Date back to his original claim since that is the evidence the BVA judge used as positive/favorable evidence.

This appear to be one of those claims where the veteran also reopened his claim in November 2019 where the VARO denied his claim then the veteran filed a timely NOD, VA Form 10182 to the BVA and they granted his claim, but the VARO only granted his effective date back to his last reopen claim but failed to use the veteran’s entire file. The veteran not only successfully filed a timely NOD and got the BVA to grant his claim, now he has to request that his effective date should be the date facts found with the evidence that the BVA judge use to service connect his claim. 

The BVA Decision states that the veteran’s Sleep Apnea began while the veteran was in service. Since the veteran’s sleep apnea began while the veteran was in service then his effective date should have been the date of his original claim.  If I am off, please correct me but it seems for whatever reason the VA is denying veterans claims, when the veteran reopens his/her claim the VA is forcing the veteran to file an appeal/NOD and once the BVA grants the veteran’s claim the local VARO is assigning an effective date of the latest reopen claim and not the original claim forcing the veteran to have to file a new appeal.  With this decision the veteran keep his benefit of doubt. So, a new VA form 10182 to request the BVA to make a decision on his correct effective date.

IMHO (IN MY HUMBLE OPINION) since the veteran already successfully filed a NOD, VA FORM 10182 in January 2020, all he has to do is to file a new NOD sending his claim back to the BVA for a final decision on his effective date.

 

Edited May 28, 2021 by pacmanx1

[blahsaysme2u]

2 hours ago, pacmanx1 said:

This appear to be one of those claims where the veteran also reopened his claim in November 2019 where the VARO denied his claim then the veteran filed a timely NOD, VA Form 10182 to the BVA and they granted his claim, but the VARO only granted his effective date back to his last reopen claim but failed to use the veteran’s entire file. The veteran not only successfully filed a timely NOD and got the BVA to grant his claim, now he has to request that his effective date should be the date facts found with the evidence that the BVA judge use to service connect his claim. 

this is exactly right. thank you for so clearly saying what i failed to do in so many posts...sorry for so much confusion. again you can see why i maybe worried about writing my own brief to appeal

[blahsaysme2u]

2 hours ago, pacmanx1 said:

IMHO (IN MY HUMBLE OPINION) since the veteran already successfully filed a NOD, VA FORM 10182 in January 2020, all he has to do is to file a new NOD sending his claim back to the BVA for a final decision on his effective date.

thank you so much. i think looked over the form. i will try and do this with my VSO. he is good editor of my ramblings and can get it into "legalese" for me.

 

[blahsaysme2u]

6 hours ago, Berta said:

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.

 

 

 

alot to unpack here so please be patient with me. 

 

yes Sean did get a copy of my whole file but i provided both lawyers with copies of all denials and the post deployment exam,DX, and C&P exam from 2008 that the VBA judge mentioned in her opine. i believe that Sean just actually read them and the other just looked at the denials.

my Initial claim is actually 2008. i posted that in this thread as well. i filed this claim as soon as i had DX in 2008. i reopened in 2013 with vso that said "hey they found medical records in 2012 and you should try again". was denied again but at this point my wife had given me the fight to fight. we kept appealing and finally in 2019 we appealed to vba. 

i use drop box for large files and send them to those who need instead of disks...maybe less secure but like some others have said before, im sure my info floating round out there already. if they want it they can find it easier than hacking my personal files. also i made copies onto usb drive and have the original disc in fire proof box in house. 

as i previously posted here: i think this might be a lil out of my VSO skill set. they provided a lawyer for my VBA case. that lawyer is the one that said i needed to fight the EED. she is employed by Virginia Department of Veteran Services, not a law office- and works soley for the VSO for VBA cases. i mentioned all this to my vso and he was very confused and basically said he didnt know how we would fight it. he told me to "write up whatever you think you need and ill submit it" but didnt offer any assistance or guidance on what or how i should. why i turned to Hadit. 

of course- YOU DID NOT DISAPPOINT! everytime i come here you always teach me and help me! thank you again for being patient. sorry for any confusion on the topic but i hope that helps. 

[blahsaysme2u]

just wanted to share this as well. found my docket case

https://www.va.gov/vetapp21/files4/a21007925.txt