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Question on the ability to affect years-old ratings...


Bunny448

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Hello, thanks for all your previous help, I continue to patron the site.

 

I just received a CD of my cfile spanning 18yrs and had a few questions -

Are you able to appeal a years-old decision to ask for a higher rating (and to receive the increased benefit for all those years)?  In my case I was granted 30% PTSD in 2006 and later put in and received an increase to 50% in 2014.   Looking through the cfile I believe it should have been 50% in 2006. 

 

 It's possible that I don't have the option of going back.  I don't have any new evidence, just that my medical records align with the higher rating.

Thank you in advance!

Edit, looking through cfile there's a note from the case of Dingess/Hartman v. Nicholson 2006,... 'If we grant your claim the beginning date of entitlement or increased entitlement to benefits will be...when the evidence shows a level of disability that supports a certain rating...'.   Is this applicable to my situation ?

 

Edited by Bunny448
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I am not sure if you can being that if you didn't appeal within a year of that decision. I could be wrong. 

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If you did not appeal within one year of the decision you are probably screwed unless you feel the VA made an error as in a CUE.  I filed a CUE on a 30 year old decision. To my mind there was a very obvious error in the original decision but I did not appeal it being a dumbass.  I lost my fight after 6 years of going to the BVA and to the Court.  I learned a lot but I still lost.  Appeal any decision you are not sure is 100% correct.

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4 hours ago, Bunny448 said:

Hello, thanks for all your previous help, I continue to patron the site.

 

I just received a CD of my C-file spanning 18yrs and had a few questions -

Are you able to appeal a years-old decision to ask for a higher rating (and to receive the increased benefit for all those years)?  In my case I was granted 30% PTSD in 2006 and later put in and received an increase to 50% in 2014.   Looking through the C-file I believe it should have been 50% in 2006. 

 

 It's possible that I don't have the option of going back.  I don't have any new evidence, just that my medical records align with the higher rating.

Your assessment is a little off, you do not need to have “new evidence.” You could reopen your claim with “material/pertinent evidence.” Under 38 CFR 3.156 a veteran can reopen a claim (this is not a CUE claim, and it is not an appeal). This is a reopen claim requesting that the VA reopen and consider your evidence of records where you argue that you feel that you should have been awarded a higher rating based on medical evidence of records that existed but not considered in your decision and your records should prove you had already met that higher rating and you request that higher rating. Reopening a claim under 38 CFR 3.156 has a lower threshold (EASIER TO WIN), now you can file a CUE claim, but they are harder to win but not impossible. If awarded/granted both claims would result in, you receiving the exact same benefits, but they have different rules. You can read up on CUE requirements and their regulations. Keep in mind that the RO may deny these claims and force you to file an appeal to the BVA for these benefits.

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.

(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 re-adjudicate the claim taking into consideration all of the evidence of record.

20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

38 CFR § 20.1403 - Rule 1403. What constitutes clear and unmistakable error; what does not. | CFR | US Law | LII / Legal Information Institute (cornell.edu)

3.105 Revision of decisions.

38 CFR § 3.105 - Revision of decisions. | CFR | US Law | LII / Legal Information Institute (cornell.edu)

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You stated:

"In my case I was granted 30% PTSD in 2006 and later put in and received an increase to 50% in 2014.   Looking through the cfile I believe it should have been 50% in 2006." 

 

If you have documented medical evidence that your PTSD rating had fit into a higher rating,

when they made that decision- evidence that was in VA's possesion at that time, you can file a CUE under violation of 38 CFR 4.6.

You will need to have a copy of the 2006 decision to file the CUE and identify th exact decision, and also I hope you have a copy of the rating sheet.

Everything you ned to know bout CUE is in our CUE forum.

38 CFR 4.6 has been th basis of many CUEs I have filed and succeeded in, and others here have succeeded as well.

38 CFR 4.6 

please read my article here:.

(It is my favorate regulation and holds the essense of what  a sucessful CUE  involves)

https://community.hadit.com/topic/60717-the-power-of-38-cfr-46/

I will bump it up again because we get so many qeustions on CUE and also I was able to get the CUE regulations changed a few years ago-by former VA Sec SHulkin,  so that might not be in this specific article. I will add it if not.

Lots of CUE info here- dont read the arguments on CUE -those arguments have been resolved, by VA case law and the newer CUE  regulation.

 

Edited by Berta
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