NO CUE FOR YOU, OR YOU, OR YOU

[pacmanx1]

When I first heard of the AMA Reviews, I thought the VA was trying to get around paying large back pay CUE/EED Claims. I knew it, I knew it. 

Can someone please help my brain out and tell me that I am wrong? It appears that a veteran should not file an EED/CUE claim with a supplemental or a supplemental form requesting an EED or a rating percentage beyond one year because these regulations are against the claim. It appears that the VA is trying to get around paying veterans CUE/EED awards that has a potential large retro payment.  Example: Veteran was rated and denied claim for service-connection on January 1, 1990, but veteran finally found copies of records June 15, 2021. If the veteran files a supplemental claim or an HLR claim the VA will deny the veteran’s claim based on these regulations. The Veteran can not file a BVA Appeal Direct Review because the veteran original decision is not within the one-year of the AMA Review. So, is the VA trying their best to get around paying large retro under the new AMA Reviews?

 

3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.

Quote

For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.

3.2500 Review of decisions.

(2) More than one year after notice of a decision. A claimant may change the review option selected to a supplemental claim after expiration of one-year following the date on which VA issued a notice of decision on an issue by following the procedure specified in paragraph (e)(1) of this section.

Quote

Where VA receives the supplemental claim application after expiration of the one-year period, continuous pursuit of the claim will be broken and VA will apply the effective date provisions under paragraph (h)(2) of this section,

unless VA grants an extension of the one-year period for good cause shown under § 3.109(b) and the supplemental claim application is received within the extension period allowed.

(h) Effective dates -

(2) Supplemental claims received more than one year after notice of decision. Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issues notice of a decision or the Board of Veterans' Appeals issued notice of a decision,

Quote

the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.

Now using my scenario: Example: Veteran was rated and denied claim for service-connection on January 1, 1990, but veteran finally found copies of records June 15, 2021. The only way the veteran can get his/her corrected benefits are either to file a reopen claim or the file a CUE using a VA form 526EZ or a VA Form 4138 Statement In Support and that is if the VA accepts their claim, but the local Regional Office may still deny the veterans claim.

 

This is not Burger King, and the VA can’t have it their way. If the VA will not allow an EED/CUE claim after the AMA Review System and the veteran has legitimate evidence, then the VA will have to accept claims for EED/CUE as reopen claims and or CUE Statement In Support Claims. I know that the VA is trying to tell veterans that they cannot file VA Form 526EZ and VA Form 4138 Statement In Support of (Reopen or CUE Claim). It seems that after February 2019 that some VA has been telling veterans that they cannot fill out these forms. As Far as I know these forms are still acceptable, but the VA may try to discontinue them, Since there is no time limit on reopening a claim or filing a CUE claim this is the only way the veteran can get his/her benefits.

 

Edited November 7, 2021 by pacmanx1

[pacmanx1]

I am not doubting that a veteran can win their appeal but I am doubting that it will most likely have to go to the BVA to win. 

[JKWilliamsSr]

4 hours ago, pacmanx1 said:

I am not doubting that a veteran can win their appeal but I am doubting that it will most likely have to go to the BVA to win. 

I am going to file a CUE based on the very thing that is going on here.  I finally got 50% for Pes Planus with Plantar Fasciitis.  (I know I said this before...)  The VA denied me in 2002 and 2009 stating that my service records have no record of my foot conditions.   My denial was because I did not have new and material so confirmed the 2002 decision. 

In 2018 after getting my C-File I had the VA reopen my foot claim using the SMR's they sent me.   The entire time they had my records and was denying me.  There is a stamp in my C-File showing the Houston VA received my records and someone initialed they reviewed my records.  This was right after I filed my 2002 claims.  So IMO that is a clear CUE. 

So after getting lowballed with 10% for my feet, I hired an attorney.   Got me 50% on a supplemental claim that had a 2019 effective date. We sent another supplemental claim about the effective date and the VARO stated the date was correct no errors was found. 

So I am going to have to go to the BVA. 

[pacmanx1]

31 minutes ago, JKWilliamsSr said:

I am going to file a CUE based on the very thing that is going on here.  I finally got 50% for Pes Planus with Plantar Fasciitis.  (I know I said this before...)  The VA denied me in 2002 and 2009 stating that my service records have no record of my foot conditions.   My denial was because I did not have new and material so confirmed the 2002 decision. 

In 2018 after getting my C-File I had the VA reopen my foot claim using the SMR's they sent me.   The entire time they had my records and was denying me.  There is a stamp in my C-File showing the Houston VA received my records and someone initialed they reviewed my records.  This was right after I filed my 2002 claims.  So IMO that is a clear CUE. 

So after getting lowballed with 10% for my feet, I hired an attorney.   Got me 50% on a supplemental claim that had a 2019 effective date. We sent another supplemental claim about the effective date and the VARO stated the date was correct no errors was found. 

So I am going to have to go to the BVA.

The real issue here is that the VAROs are confused about what is the correct form to file to request your 2002 EED (Earlier Effective date).  At present there is no set form to file a CUE claim. You file a VA Form 526B and you get a letter saying that is the wrong form. You use a VA Form 4138, and you get another letter saying that is the wrong form. You file a VA form 0995 and you get another letter in the mail saying that is the wrong form. WTH. I finally got the VA to accept my VA Form 526EZ and the VA reopened my claim and sent me to a new LHI C & P exam but since I am already 100% scheduler, the VA continued my rating without even considering my request for an EED. My claim finally went to the BVA where it waits for who knows how long.

When the VA sent me to my recent LHI C & P exam, the examiner mentioned that I have/had an earlier diagnosis, but the Regional Office still ignored her medical opinion. So, yes, the evidence has always been in my file, but the Regional Office keep ignoring it.

Edited November 9, 2021 by pacmanx1

[pwrslm]

Why does the VARO need a new C&P for CUE? Seems like the claim involving an error in a prior decision would be a legal and not a medical issue. At issue is the evidence at hand when the decision was made, which precludes the necessity for a new exam.

Edited November 10, 2021 by pwrslm

[pacmanx1]

39 minutes ago, pwrslm said:

Why does the VARO need a new C&P for CUE? Seems like the claim involving an error in a prior decision would be a legal and not a medical issue. At issue is the evidence at hand when the decision was made, which precludes the necessity for a new exam.

It’s about the money, it is always all about the money. Any time a veteran file a claim, once granted the VA must determine an effective date and a rating percentage. In this particular case, when filed an original claim in 2002. If the VA ever grants an effective date back to 2002, the VA will have to determine what was the rating, then and now. The VA could either grant a stage rating (Fenderson Rating) where they may start the rating at 0% or 10% and increase it over the years until they catch up to the current year where they have granted a 50%. The VA could also grant a 50% rating for the entire time all the way back to the 2002 effective date. Keep in mind when ever the VA grants a claim, the VA would require a new C & P exam to determine that they are not overpaying the veteran or that they don’t overpay the veteran. It is all about the money. This step is really unavoidable, by not going to a new C & P exam the veteran risk not getting his/her correct benefits or the VA thinking that the veteran is uncooperative and delay his/her claim.

Edited November 10, 2021 by pacmanx1

[pacmanx1]

Sorry mixed posters not your particular case but the one above.

Edited November 10, 2021 by pacmanx1