Should I file CUE or just cite 38 CFR 3.156(C)

[JKWilliamsSr]

I am in the process of working on my appeal for an EED for Bilateral Pes Planus with Plantar Fasciitis rated at 50%.   Here is a history of my claims.

1. Filed a claim in 2001 to file for foot disability with a VSO.  Nothing was done about it.  The VSO made a couple requests following up and it was ignored.

2. Jan 2002 with a different VSO my claim opened.  It is denied by the VA stating that service records show no complaints of claimed disability.  I did not appeal.

3. Filed again in 2009.  Claim was denied because I did not submit new and material evidence.

4. Filed a NOD in 2010.  It would take the VA 3 years to respond.

5.  June 2013 - I get a statement of case where the VA stated again that I did not submit new and material evidence.  They also stated service medical records show no complaints of claimed disability.

6.  In 2018 I get my C-file and find in there service medical records that show proof of my disablity. My service records show normal feet on my entrance exam.  Two doctors visits showing diagnosis of flat and plantar fasciitis.  An Xray confirming flat feet diagnosis and an exit exam showing abnormal flat feet with a pes planus diagnosis.

7.  in 2019 i File a supplemental claim for flat feet and I submit the service medical records I find in my C-File.  I also submit an IMO from an outside doctor.  I get an exam.  I get service connected but lowballed with 10%

8. In 2020 I hire an attorney and we appeal the decision with another supplemental claim for a higher rating and EED.  I get rated at 50% but the EED is denied. The decision would be in early 2021

9. We file an HLR for the EED and that is denied.  The senior rater said no error was found....surprise suprise.

Here is where I run into my dilemma on how to tackle this.  The VA has repeatedly denied me by saying my service medical records show no complaints of the claimed disability.  However,  the evidence I use to force them to reopen the claim is service medical records I got from my C-File so it is clear they had the records.  I do not know if this would impact 38 CFR 3.156(C) because these records clearly are part of my claims folder.   Of course I can't say as to when they became part of my claims folder.  They could argue that the 38 CFR 3.156(c) does not apply but then that wouid bes a clear CUE because they had the records and ignored or missed them.

While reviewing my letters I noticed something odd.  All of my decision letters list as part of the evidence my service medical records with the exception of 3 and all of the apply to my recent decisions related to my feet.  The letter that grants service connection and low balled me at 10 percent do not list the records but  cite 38 CFR 3.304 for direct service connection.  My decision letter that grants me 50% also does not list my service medica records.  The HLR decision letter where no error was found also do not sited service medical records.  I think this is intentional because citing this as evidence clearly would show an EED is warranted.  The reasons and bases do not explain why they granted me service connection.  They only cite the CFR and make not mention of any of the evidence.

[pacmanx1]

Quote

We filed an HLR for the EED and that is denied.  The senior rater said no error was found.... surprise surprise.

There is a lot here, before you decide to file a CUE claim, depending on when the HLR denied your last decision, you may still be within the appeal status range (1 full year). As stated, many times, yes, you can file a Cue claim and Cue claims can be filed at any time and there is no time limit but if you are within one year of your HLR decision than it would be easier to simply file a disagreement to the BVA. There are rules and regulations that support your argument but a lot of the time the local RO will/would just ignore all this evidence. Your evidence does not need to be new; it can be material or pertinent.

Example: 38 CFR 3.156 (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.

38 CFR 3.156 (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. And

38 CFR 3.156 (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.

Also consider Precedent Decision Bernard V Brown, 4 Vet. App. 384, 390 (1993) states “once a claim is reopened, a claimant is entitled have his/her claim re-adjudicated on the basis of all the evidence of records both old and new.”  

When reopened claims are granted pay close attention to the evidence used in making the decision and the Reason and Bases Section to argue your disagreement. If the RO does not list your specific medical records both in-service and post service, this can be challenged and there is no way of the RO proving that this evidence was considered in their decision.  

[Marine Corp 69/70]

JKWilliamsSR   On every page of your C-file at the bottom of the page has a Date time an year when it was put in your file from St. Louis check to see if it is Date and go from there. A CUE should be your last resort 

[JKWilliamsSr]

6 hours ago, Marine Corp 69/70 said:

JKWilliamsSR   On every page of your C-file at the bottom of the page has a Date time an year when it was put in your file from St. Louis check to see if it is Date and go from there. A CUE should be your last resort 

My C-File does not have this. At the bottom each page it states "Copy made from VARMC, ST. LOUIS from a record in VA's posession."   There is no date.

[JKWilliamsSr]

9 hours ago, pacmanx1 said:

When reopened claims are granted pay close attention to the evidence used in making the decision and the Reason and Bases Section to argue your disagreement. If the RO does not list your specific medical records both in-service and post service, this can be challenged and there is no way of the RO proving that this evidence was considered in their decision.  

I agree with all you said...shortened the quote for brevity sake.

I am still within a year of the HLR decision.  In fact I am still within a year of the decision I filed the HLR on.

I would prefer not to file a CUE and I more than likely will not.  I just wanted to make sure I did not need to.  My concern is what kind of argument the VA will attempt to make when I file citing 38 CFR 3.156(C) and I am probably overthinking it.  I used service medical records that the VA had in their posession to have my claim reopened.

While working on this reply I went back to review some information and may have stumbled on the answers to some of my questions. I am not sure how I missed them but it goes to show that you need to keep reviewing to make sure you get it all.   One of my HLR decision letters while full of denials may have the information I need.  This is the one letter where there is a full detailed accounting of the evidence used.   It appears my service medical records could have been scattered because there are 5 dates listed when the rater states service medical were received. (Sep 20, 1996, June 27, 1997, April 16,2016, September 16, 2019, September 25, 2019)

One of these dates one of them stands out:

April 16, 2016:  These records were received after my 2013 Statement of Case.  I do not know specifically what records were included here because the C-File I received from the VA do not have dates on documents on when they were received but I guess that date is somewhere but not in my C-File.  I will say that these records did not come from me. 

When I filed my supplement claim in 2019 I submitted a statement in support of claim stating the reason the foot claim should be reopened and stated I was submitting service medical records.  In this statement I cited 38 CFR 3.156(a) and 38 3.156(c) because I did not really know which would apply and wanted to make sure I was covered.  Regardless of what reasons they were still required to consider all reasonably raised issues (Robinson v. Peake).  This was also raised by my attorney during the HLR ( 38 CFR 3.156(c) )

I plan on pulling a lot of my argument from Emerson v. Mcdonald.   A precedent setting case that was decided in 2016.  One key thing that this decision sets is that if the VA comes into service medical records that were created but not part of the claims file they are required to readjudicate per 38 CFR 3.156(c)(1)

Edited April 10, 2022 by JKWilliamsSr

[broncovet]

Correct.  Dont file Cue with new service records.  Cue is a "standard of review"..the toughest there is at VA.  No benefit of the doubt. (BOD).  Why give up BOD if you dont have to?  For most Vets getting benefits is challenging enough..without raising the bar to Cue if its not necessary.  If you are in the one year appeal period since VARO decision, you can file a supplemental claim with your 38 CFR 3.156 C.  

 

[jbasser]

Keep in mind a CUE relates to the regulations in effect at the time the CUE was committed.