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

[JKWilliamsSr]

19 hours ago, pacmanx1 said:

Did your Attorney file an appeal to the BVA? How long ago was your decision?

I have yet to file an appeal to the BVA for this.  I am now 50% for my feet so this HLR was for the effective date.  This is where it gets weird.  My attorney said he reveiwed my file and did not see a CUE for the effective date.  So in my mind I am questioning if my attorney knows what he is doing.  The CUE is clear.  The VA denied my claim in 2002 saying my service records showed no complaints of foot disabilities.   Well I have my C-File and that is a complete lie.  I actually used my SMR's to reopen the claim in 2019 by sending the foot complaints they ignored.   These are records the VA had in their possession when I filed my 2002 claim and I can prove it because there is a received stamp in my C-File when they got them.  On top of that someone put a note they reviewed my medical records and actually initialed it.

Edited November 11, 2021 by JKWilliamsSr

[pacmanx1]

1 hour ago, JKWilliamsSr said:

I have yet to file an appeal to the BVA for this.  I am now 50% for my feet so this HLR was for the effective date.  This is where it gets weird.  My attorney said he reveiwed my file and did not see a CUE for the effective date.  So in my mind I am questioning if my attorney knows what he is doing.  The CUE is clear.  The VA denied my claim in 2002 saying my service records showed no complaints of foot disabilities.   Well I have my C-File and that is a complete lie.  I actually used my SMR's to reopen the claim in 2019 by sending the foot complaints they ignored.   These are records the VA had in their possession when I filed my 2002 claim and I can prove it because there is a received stamp in my C-File when they got them.  On top of that someone put a note they reviewed my medical records and actually initialed it.

I strongly suggest that you take a look at 38 CFR 3.156© and try to file a reopen claim and go from there. Since the VA denied your claim, you have to get your claim to the BVA. As stated in my prior post that the VARO is very confused about which form to file but I finally got my VA form 526EZ through and now my claim is at the BVA waiting its turn to be reviewed by a BVA judge. We will see what will happen. The VA can’t cover up their mistakes by implementing new regulations to hide their errors and cheat the veteran out of benefits that are due to them. Not sure how far you are willing to take this, but I am willing to go to the courts. Also as stated in my other post there may need to be a new precedent that the VA cannot cheat veterans this way.

My story is strange and a little bazaar, but I will try to make it short. The VA/BVA denied my claim for a decade before the CAVC remanded it and then sent my appeal back to the BVA where they granted it. The BVA did a straight grant and sent my appeal to the VARO where they conceded that they made a CUE and granted my claim back to the date of my reopened claim. I filed a NOD, and the VARO granted my increase to the date of my NOD. I than filed a new NOD, and the VARO decreased the rating that they just gave me and made the effective date the  date of my new NOD. This time when I filed my NOD, my claim went back to the BVA where they granted my effective date back to my original 1998 unadjudicated claim and forced the VARO to restore my increased rating and review my appeal for my increased rating. The VARO restored my rating but failed to consider my increased rating percentage back to my original claim. I am waiting for the BVA to complete my claim so I can move on. So, I know it is possible because the BVA has already done it.

[pacmanx1]

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if 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. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

[JKWilliamsSr]

Going back to the original post I can see what the VA is doing.  They are using 38 CFR 3.400 to pick and choose what laws they are to apply to decisions based on what I can only deduce is rater preference.  They are clearly misinterpreting the law.  The first sentence is clear... "unless as otherwise provided,"  is the key wording.   There are myriad of laws that govern the effective date and the "unless as otherwise provided statement clearly means if there isn't a law that will determine the effective date this particular CFR will apply. 

I will use my situation as an example.  It is clear that 38 CFR 3.156(C) applies when it comes to an effective date.  That would qualify under the "unless as otherwise provided" scenario.   However, in my decision letter the only laws cited were 38 CFR 3.400, 3.155, 3.114, 3.2500, 3.2501 and 3.105.  So it is clear they did not consider 38 CFR 3.156.

I put in a request for my C-File last week and I am going to wait until I get that before I proceed.  For my HLR my attorney requested a phone call and I need to see if he request reconsideration based on 38 CFR 3.156(C)(1)  which would have then have then made 38 CFR 3.156(C)(4) relevant.  He told me that during the call it appeared the rater was agreeing with him.  He did seem a bit surprised at the decision.  It was made the very same day of the call. 

EDIT:  It does not matter if my attorney raised the 38 CFR 3.156(C) claim or not.  I had already did so. When I filed my supplemental claim I submitted a statement in support of my claim to reopen.  In this statement I cited 38 CFR 3.156(a) and 38 CFR 3.156(c) as reasons reasons to reopen and that I was submitting SMR's that supported the claim.   The reason I thought I had to go the CUE route is because I had assumed the VA had addressed this in their decisions.  It was my own fault for not even paying attention to the cited laws.  

In any case 38 CFR 3.156 was required to be addressed in any decision because I raised the claim. 

Edited November 12, 2021 by JKWilliamsSr

[pacmanx1]

Unfortunately, IMHO your claim will have to go to the BVA for them to make the decision because the local VARO does not want to approve this decision and force the BVA to do it before the local VARO implement the decision and pay you the retro. If your claim is at the BVA, wait for their decision.

Edited November 18, 2021 by pacmanx1