7-Day Decision on a 30-year-old Matter: Entering The Guessing Period

[ljl]

I just found out the VA made a decision on a supplemental claim I filed only a week ago concerning a now 30-year-old claim. The matter involves an earlier effective date for TDIU to match the recent grant of an earlier effective date for service connection for GAD. They denied the EED for TDIU based primarily on the now-defunct date of service connection for GAD in 2017 so I sent them that decision along with evidence supporting my inability to earn a decent living for almost thirty years. I averaged over that time, $6000 dollars a year.

How much consideration went into records that support a retroactive rating the same as my current of 70% I don't know but most of the supporting documents are long-gone. I made the unavailability of those records as a part of my argument as I was granted the EED for service connection for GAD under 38 cfr 3.156(c) where service records are added to your file later on that prove your case.

Nervous because they decided so fast - 7 days. Has anyone else had such a lightening-fast decision and if so, how'd it go?

Disclaimer: I understand I only have to wait a few days for an answer but I'm now caught in that guessing frame of mind that won't abait until I found out.

[pacmanx1]

1 hour ago, pwrslm said:

This was supplemental claim, not appeal. 

At present this current post is about a supplemental claim and is not ripe for a Court appeal and a simple appeal will do.

I think I already posted this on page 7(seven).

Although the Board has docketed the motion as one to revise a Board decision on the basis of CUE, from the face of the August 2020 motion, it is clear that it was the intent of the Veteran's representative to refile a RO CUE motion that was dismissed without prejudice to refiling in the Board's July 2020 decision.  Although it was signed by the Veteran's representative, included his claim number, and included the date of the Board's July 2020 dismissal, it did not contend that the Board committed an undebatable error of fact or law that resulted in a manifestly different outcome when it dismissed the RO CUE motion in July 2020.  As such, it does not satisfy the criteria for revision of a Board decision on the basis of CUE set forth at 38 C.F.R. § 20.1404(b).  It must therefore be dismissed without prejudice to refiling.

The above statement is that a veteran can refile a dismissed CUE Claim and it is not a one-shot thing. 

Edited January 25, 2022 by pacmanx1

[pwrslm]

On 1/24/2022 at 1:20 PM, ljl said:

"Our prior decision dated February 27, 2020 granted entitlement to individual unemployability

(IU) from December 6, 2017. On January 7, 2022, VA received your supplemental claim

requesting review based on additional evidence on January 7, 2022, for review of the effective

date under 38 CFR 3.2501. Based on your correspondence attached to your claim, we also

considered this as a CUE claim for consideration under 38 CFR 3.105"

 

7 hours ago, pacmanx1 said:

Although the Board has docketed the motion as one to revise a Board decision on the basis of CUE, from the face of the August 2020 motion, it is clear that it was the intent of the Veteran's representative to refile a RO CUE motion that was dismissed without prejudice to refiling in the Board's July 2020 decision. 

But the notice of CUE says nothing about the Board (We=VBA not BVA). If the Board dismissed CUE without prejudice, then there was never a decision. Submission of the Supplemental Claim then should address the issue. The decision of the Board was based on evidence that existed in 2020 that granted an effective date back to 2017. The RO should have authority to revise this based on n/m evidence in 2022. DRO also should be able to revise it.  If the 2020 claim resulted from remand by the BVA, supplemental claim should be accepted and processed to an appealable decision.

The real issue is that Ijl needs direction of where this needs to go.

 

Myself, I would stick with Mr Cue on this because the lack of candor on the part of the RO fails to provide that same direction from what we have seen. The idea that the claimant needs to wait through a new appeals process (years) vs a revision based on new evidence never presented to the Board is not much different than the last 17 years because the Govt failed to properly present evidence that it has had from the beginning. Further denial of benefits benefits nobody.

Edited January 26, 2022 by pwrslm

[pwrslm]

The Board notes that once there is a final denial of a CUE claim, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39,44 (1998) ("Under the principle ofres judicata there is a final decision on issue of [CUE] ... that - 2 ­ • IN THE APPEAL OF e WILLIAM A. WADSWORTH particular claim of CUE may not be raised again. '''(quoting Russell, 3 Vet. App. at 315». However, the veteran may submit a different theory of CUE from the one previously considered in September 2000. See Andre v. Prinicipi, 301 F.3d. ] 354, 1361 (Fed. Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request so that the preclusive effect of res judicata bars refilling only as to that particular assertion of CUE); see also Disabled Am. Veterans v. Gober, 234 FJd 682,694 (Fed. Cir. 2002) ("[A]llowing a claimant to seek CUE review ofa specific issue in a Board decision leaves other issues in that decision subject to their own CUE review.")

 

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc/0120643407

 

So even if this was a CUE in 2020, which may or may not have been dismissed without prejudice, this is an entirely different theory based on n/m evidence. In essence, there was never a final decision based on CUE in the past.

 

It goes into the system with a clean slate and should be denied by the RO before any appeal would be made.

Edited January 26, 2022 by pwrslm

[pacmanx1]

5 minutes ago, pwrslm said:

Myself, I would stick with Mr Cue on this because the lack of candor on the part of the RO fails to provide that same direction from what we have seen. The idea that the claimant needs to wait through a new appeals process (years) vs a revision based on new evidence never presented to the Board is not much different than the last 17 years because the Govt failed to properly present evidence that it has had from the beginning. Further denial of benefits benefits nobody.

I think you are missing my point. I have already stated that ljl should just simply file an appeal. Again, please read the entire thread. Mr. Cue wanted to see where the BVA dismissed a CUE claim without prejudice as to that point that is the only reason I posted it. Also, I posted that CUE claims have always stated that veterans lose their benefit of doubt when the veteran files a CUE claim. I was trying to explain to Mr. Cue that just because he does not understand something, his post could cause some confusion

At present this current post is about a supplemental claim and is not ripe for a Court appeal and a simple appeal will do. 

 

[pacmanx1]

3 minutes ago, pwrslm said:

The Board notes that once there is a final denial of a CUE claim, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39,44 (1998) ("Under the principle ofres judicata there is a final decision on issue of [CUE] ... that - 2 ­ • IN THE APPEAL OF e WILLIAM A. WADSWORTH particular claim of CUE may not be raised again. '''(quoting Russell, 3 Vet. App. at 315». However, the veteran may submit a different theory of CUE from the one previously considered in September 2000. See Andre v. Prinicipi, 301 F.3d. ] 354, 1361 (Fed. Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request so that the preclusive effect of res judicata bars refilling only as to that particular assertion of CUE); see also Disabled Am. Veterans v. Gober, 234 FJd 682,694 (Fed. Cir. 2002) ("[A]llowing a claimant to seek CUE review ofa specific issue in a Board decision leaves other issues in that decision subject to their own CUE review.")

However, the veteran may submit a different theory of CUE from the one previously considered in September 2000. See Andre v. Prinicipi, 301 F.3d. ] 354, 1361 (Fed. Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request so that the preclusive effect of res judicata bars refilling only as to that particular assertion of CUE); see also Disabled Am. Veterans v. Gober, 234 FJd 682,694 (Fed. Cir. 2002) ("[A]llowing a claimant to seek CUE review ofa specific issue in a Board decision leaves other issues in that decision subject to their own CUE review.")

In other words, the veteran or his representative can refile a CUE Claim under a different theory in other word not a one-shot thing.

[pwrslm]

1 minute ago, pacmanx1 said:

n other words, the veteran or his representative can refile a CUE Claim under a different theory in other word not a one-shot thing.

Supplemental claim with n/m evidence is presented. IF the RO recognized it as a CUE claim, it would need to be denied at the VARO before an appeal is filed. There is nothing there from the CAVC that states this can only happen at the BVA, but only that the veteran/claimant can file a different theory of CUE. 

 

Like I said, the RO Fudged up.