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Need help knowing what Claim to file for VA


James9864

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Hello I got a VA decision letter in May of 2012. I then was medically retired in Dec 2012. I filed a claim recently with the Board of Naval Corrections asking for a increase in my ratings due to my belief the that Rating were not what they should be. The Board of Naval corrections came back and said that they would not change my ratings unless the VA also said that their rating decision in May of 2012 was incorrect and should be change.

Can I and how would I file a claim to the VA to ask for a re-evaluation of a claim from 2012, is it even possible?

I know this website but none seem to apply for my specific set of circumstances. https://www.va.gov/disability/how-to-file-claim/

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The bottom line is, you will have to get the VA to reopen your 2012 claim or file a CUE claim. Either way your look at it is, you are going to have to prove with medical records that the VA made a mistake in their decision and it cost you benefits and state the regulation the VA violated or evidence the VA had in their possession and did not use, or reopen your claim with new and material or pertinent evidence that the VA failed to consider in their decision. You may want to look up 38 CFR 3.156(C)

To file a CUE claim:

 

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

  • (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
  • (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
  • (3) the error is "undebatable;" and
  • (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

Clear And Unmistakable Error (vetsfirst.org)

 

To reopen a claim: 

How Do I Get a Claim Reopened?

You cannot automatically get a claim reopened. Instead, you must first provide what is called "new and material" evidence to the VA.

New and material evidence is evidence that you didn't submit before, but it can't be just any new medical records you have. It must be so substantial to your claim that it would be unfair for the VA not to reopen the claim to consider it. There has to be at least a reasonable chance that your claim could be proven, and benefits issued, on the basis of the new evidence.

Reopening an Earlier Claim for Veterans' Disability Compensation | Nolo

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  • HadIt.com Elder

Good info from @pacmanx1

There is a forum here dedicated to CUE.

Here's a good example of a CUE I recently won a CUE for a decision that became final about 20 years ago. The similar approach might work for you depending on the error the VA may have made. Mine was pretty cut and dry.
  I won 30% SC for a disability due to aggravation, but the VA reduced that by 10% to 20% based solely on the C&P examiner stating I had the disability prior to service. I looked up the laws and regs that were in effect at the time the decision was made. I found the reg in effect at the time that described the proper procedure for reducing ratings granted due to aggravation. They would first determine the level of disability at the time of the decision and then determine the pre-service level of disability in terms of the rating schedule and then deduct it. I checked the rating criteria in effect at the time of the decision and found that "because they had it prior to service" was not mentioned. The criteria was very specific. I explained all that and explained the benefit gained if not for the error. The VA verified it and then corrected the error. My initial combined rating went up from 40% to 50%. I got retro including refund of VA copays.

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  • HadIt.com Elder

Vet first.org  has outdated info Pacman--so does NOLO, sometimes .

A CUE claim can be filed on a recent decision, within the appeal period.

Former Secretary Shulkin , after receiving my letter, changed this and it is in M21-1MR-and the VA had already awarded my CUEs that I filed days after getting their decision.

But pacman is correct and he gave you the two options, CUE or 38 CFR 3.156.

We have plenty of CUE info here and also some CUE winners.

Also 38 CFR 3.156 (c) claimants.

But the dates you put seem to mean you filed a claim while you were still  in the Military-and maybe the MEB was still in process.

Can you scan and attach the 2012 decision here , to include the evidence list?

Do you have a complete copy of your inservice medical records, and inservice Personnel file?

Cover C file # name, address  prior to scanning it.

 

 

 

 

 

Edited by Berta
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