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EARLIER EFFECTIVE DATE

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SANUSCG

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12 hours ago, broncovet said:

"HLR" is VA speak for "no new evidence".  HLR is not the correct way to appeal when seeking an EED "with new evidence".  HLR specifically EXCLUDES new evidence. 

 

Better is skip HLR and go to the BVA...and submit your new, relevant evidence.  

The instructions on the HLR form explains it:

Bottom line:  

NEVER, EVER use HLR when you need to submit new evidence.  

My advice is to either:

1.  File a supplemental claim "with new evidence" or

2.  File an appeal to the BVA "with new evidence".

I want to make sure I am on the same page.  I reopened this original claim and submitted the "new medical military evidence".  They awarded me 20% ED date in 2020.  So the new medical evidence, was submitted, and is why i received the 20% for the disease, as it was service connected.   The question is that I didn't appeal, peruse or NOD the original claim at all during the time I opened the claimed till 2020, when they granted me the 20%.  Should i go to the BVA and request the EED back to 2009, when I original submitted the claim, which was submitted within one year of discharge.  I am referencing 38 CFR 3.156c.  It doesn't state anything about having to of appealed, perused or NOD the original claim, but I may be missing something.   

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Ask the VARO first. There is a possibility that a HLR would note that under 3.156c your request for an EED is valid. This takes the least amount of time. In your submission for HLR make sure you refer to 3.156c specifically.  

"in reference to 38 CFR 3.156c, which states " 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....(4)...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." I request an EED of (day after your discharge)."

This would not be considered new evidence, and should be acknowledged by the RO in a HLR. If the HLR fails, then submit an appeal. My last HLR took just over 1 month (they made the same error that the orig RO did so its appealed). 

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There is no freestanding effective date claim.  

Your choices are as follows:

1.  File a supplemental claim, while submitting your new evidence citing 38 cfr. 3.156c.  

2.  If you are within a year of a VARO decision (inlcuding HLR, DRO, or regular VARO, then appeal it, alleging the effective date was incorrect, submitting your new evidence, to the Board of appeals.  

    Cue is based on the record "at the time", so, unless you think the evidence was in VA's possession, Cue does not apply.  

    As I explaned, if you read the directions for the HLR, new evidence is specifically excluded in HLR, so that is a waste of time.  If in doubt, follow directions.  

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Good advice here but I have a different take on this:

You staed:

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I put in a claim back in 2009, and it was denied, due to no diagnosis of the disease in service.  I didn't appeal or follow up on the claim.  In 2020 I found new "material evidence" for the disease during my service. The VA approved my claim, that was denied originally and granted me 20% disability for it.  Should by effective date of the claim be when I first claimed the disability back in 2009 and not 2020?  I put the claim in within 1 year of my separation of service.  Both the VA and the higher level reviewed denied the reopen claim."

I would file  CUE on the 2009 decision  and also on the 2020 decision- IF the disability you had was rated at least at 10% when you filed it.

 " I put the claim in within 1 year of my separation of service." If the CUE succeeds the day after your discharge would be the EED.

I would CUE the 2020 first, and then file the separate CUE on the 2009 decision.*

A re-opened claim does not mean the proper retro will be applied.

*But then again, I am a Cuerino and there is not really enough info here yet to really know if CUE would apply, as it rests on a ratable percentage in the older decision.

Have you posted those two decisions here anywhere? If not can you scan and post them here? we also need to see the evidence list they used and the rating sheet.

Cover your C file #name, address prior to scanning and attaching them here.

 

 

 

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20 hours ago, SANUSCG said:

Yes, correct.  I found an actual medical record that I was diagnosed with the disease that was not with the original claim.  It was a government document / STR.  I have not appealed the decision as of yet.  The higher level decision, also denied it, don't know why, they didn't discuss that with me, for some reason. 

 

20 hours ago, SANUSCG said:

Yes, correct.  I found an actual medical record that I was diagnosed with the disease that was not with the original claim.  It was a government document / STR.  I have not appealed the decision as of yet.  The higher level decision, also denied it, don't know why, they didn't discuss that with me, for some reason. 

Does it matter if I didn't appeal / NOD or pursue the original denied claim?  It was denied in 2009 and I didn't put in a supplemental claim till 2020 per the CFR 3.156.c

Thank you

 

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Many here have filed CUE on past unappealed decisions.Most CUEs are filed on past unappelled decisions, however a CUE can be filed within days of getting a decision, and the regulations on that are in the CUE forum.

My SMC CUE was awarded in my Nehmer AO IHD award, 2012 I think., but I filed it on a 1998 award letter that i did not appeal.

My Vet rep seemed intersted in the fact  that I told him they did not award SMC and should have, due to the rating sheet ,  but he said that was because Section 1151 claims are "different" then regular claims, in respect to SMC .He was wrong .

If a vet has 100% SC P & T and also a section 1151 awarded rating of 60 % or more they are eligible for SMC consideration by law. 

If a vet has a TDIU and then gets an additional disability- that VA caused ( Section 1151) and the 1151 made him or her totally housebound or was rated at 60 % or more, the veteran should get SMC.

Here is a beauty of a recent CUE award.:

"ORDER The portion of the July 30, 2021 Board of Veterans' Appeals (Board) decision related to the issue of entitlement to an effective date of July 20, 2001 for the award of service connection for fibromyalgia, on the basis of clear and unmistakable error (CUE), is vacated.

Entitlement to an effective date of November 3, 2001, for the award of service connection for fibromyalgia, on the basis of CUE, is granted.

FINDINGS OF FACT 1. The July 30, 2021 Board decision granted entitlement to an effective date of July 20, 2001 for the award of service connection for fibromyalgia on the basis of CUE. 2. The Veteran separated from active service on November 2, 2001. 3. The effective date for a grant of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The Veteran has identified a June 2003 rating decision in which he alleges CUE and a specific error or theory as to why there is CUE in that rating decision."

Nice!!!!!

DOCKET NO. 18-38 767 DATE: August 12, 2021

Based on a CUE in a 2003 decision.

The veteran's EED is the day after his discharge November 3 2021 ecuse he filed within one year of his separation from service. Like you did!!!

I dont know what the veterans rating will be for the fibromyalgia CUE but I do know they owe him retro back to November 2003 -18 YEARS !!!!!

Nothing is impossible.

A CUE must be outcome determinative- in VA legalize they say the CUE manifested a outcome that was detrimental to the veteran.

What all that means is that a veteran or their surviving spouse must show that 

a legal error they can identify, had occured in a past deision and that error involved an established NSC rating at 10 % or more., and that became a SC rating, so then the VA owes them some CASH. If the NSC rating was "0" that will not produce a valid CUE.

If a NSC rating was erroneous at "0" % based on all medical evidence at time of that decision, it is possible that the "0" rating could be product of CUE, if the medical evidence in VA's possession at time of the rating warranted a higher rating.

And of course if a SC rating is wrong, that too could possibly  be the product of CUE. These are generalizations however because all claims are different.

I forgot this AM I mentioned something here in another thread.

The VA had not considered my huband's extensive VA psychiatric reords and denied the claim he had pending at death for higher PTSD rating-but as I explained-his shrink wrote to them, and they reversed in a few weeks.They also refused to acnowledge his SSDI solely for PTSD.

That could have warranted me to file a CUE  because the psychiatric records were in VAs possession and VA never considered them and the Dr. told them with a copy of his summation that he had indeed sent them those records.

But no need for CUE with the very fast resolve, due to the Doctor's letter.I brought him the decision the day after I got it.Along with the SSDI award.

30% SC PTSD ( nervous condition in those days)1983 

went up to 100% P & T for PTSD,

                                                            back to November 1991.

Nothing is impossible.

 

 

 

If the NSC rating on the rating sheet ws "0"

 

 

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