EARLIER EFFECTIVE DATE

[broncovet]

There is no time limit on CUE.  You posted:

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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. 

You dont "request an eed at the BVA".  You need to do one of these 3:  

1.  Appeal any VARO decision within a year.

2.  File a supplemental claim. (no time limits)

3.  File a CUE, as Berta suggested.  (no time limits).  

     If the LAST VARO adjudication was within a year, you can appeal that decision. 

     If the VARO "did not fully comply" with effective date regulations, then that is likely CUE.  Here are the effective date regulations:

   (These are rather lengthy and complex, so pay attention to the bold portions which may apply to you).  When you file a cue, if the VA violated a regulation, then you can cite the regulation violated. 

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38 U.S. Code § 5110 - Effective dates of awards

• U.S. Code
• Notes

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(a)

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

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 issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

 

 

 

     

 

[Berta]

I am a CUERINO and I  jumped the gun again-without enough info-

We can only try to determine a CUE when we can see the decision and the evidence list they used, and often the CUE is within the rating sheet as well.

A CUE is only valid however if the disability was at least at 10% ,when the  past denial occurred.

I have LOTs of snow to remove so someone else will  opine on the decision if you can scan and attach it here , and of course CUE regulations are explained here -ad finitum.

Many here over the years have read the CUE criteria and prepared very valid CUE claims themselves. 

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

 

[Berta]

Just to add- I wont deal with CUE questions anymore until I can see the decision evidence list and rating sheet here at hadit (redacted)

I love CUE claims but I always jump the gun without all the needed info. My fault.and time wasting for me.

You mentioned something in your SMRs in December in this thread:

"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. "

That means to me that the VA had," in their possession "your SMRs when they initally denied the claim, so that could become a valid CUE claim, if the disability was ratable at least at 10%, as NSC on the older rating sheet.That is a violation of 38 CFR 4.6.

This vet took his CUE to the Supreme Court- I have not read it all yet-

https://www.supremecourt.gov/DocketPDF/20/20-1271/171573/20210310171631832_19-2009cert petition.pdf

but all of the info anyone needs for CUE is here-in our CUE forum regarding VARO CUEs and BVA CUESm regulations - only changed in  M21-1MR once, in decades,  due to my letter to former Secretary Shulkin.

Two years ago VA said they would consider a new form for filing CUE claims on but they havent done that yet and the general consesus is that they be filed on the 21P 526 or the corresponding DIC "P"Claim form for survivors filing CUE.

 

 

[Vync]

@BertaI am also surprised that the VA has been stating they will be adding an official CUE form for years, but so far has failed to do it. They seem to have gone "form happy" over the past few years. With my CUEs being repeatedly mishandled or delayed due to VA employees not knowing how to handle them or if they need to be submitted on another form, I even initiated a White House VA Hotline request and contacted my Congressman. Both of those were closed because the VA was going to create a form. That was more than two years ago...

[Mr cue]

Vync I was thinking this same thing like what form do you use to do a cue.

Before you could just do it with a write statement.

I am going to send mine to the same fax number for expidate case and send it to the address that handle  motion for reconsideration at the bva.

I ask this ? Before you can't upload your cue claim so how do you put it in now

[Vync]

@BertaI read that fascinating Supreme Court petition you linked. Blanton has Ken Carpenter representing him which is very promising. I like the approach they are taking because they are challenging the severely restrictive and adversarial interpretation stemming from Cook v. Principi, 318 F.3d 1334, 1345 (2002). If he wins, the effective date would go back to the mid-1990s.

 

@Mr cueIt happens. I filed a couple of CUEs right after the AMA changes went into effect and it sat idle for six months. After inquiry, I learned that it was stuck because nobody could figure out what form I "should have used". After learning that, I sent them a link to M21-1 which clearly explained that a CUE does not need to be submitted on any specific form as long as it describes the required elements. On one instance, I later sent in a supplemental form just in case that contained two CUEs. One was granted right away, but the other went HLR. During the HLR phone call, the agent said I was right and they went on to explain a number of things. The next week I found that the decision basically ignored what was discussed, rubber-stamped the preceding denial notes, and totally ignored detailing why my points were not CUE. On another, I also submitted a different supplemental and was denied, but I won via HLR.

I remember Berta saying that some CUEs can be as short as a one page letter. I prefer the spoon-feed the VA exactly what is needed instead of assuming they might figure it out on their own.

Although it has been a couple of years, I submitted mine a couple of ways. Regardless of what I submit, I always mail it in to the intake center via certified return receipt mail to have hard proof it was received. I have also have faxed them to the intake center and even submitted some documentation online. In one case, I was told that the uploaded documentation "disappeared", so I had to resend it. Crazy...