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EED on PTSD Claim is it a CUEis there a rule atc2017 that would prevent eed

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ddm39142002

Question

I was Diagnosed with PTSD in 2018 awarded eed date went back to initial denial in 2015 which I didn't appeal.

 

 

 

Record shows tI had filed a PTSD Claim in 2002 was given a favorable CNP and was diagnosed with PTSD but denied. Also I did not appeal.

If they went back to 2015 to my denial that wasn't appealed. Why won't they go back to 2002 to a favorable CNP as written by my Claims rep to 2002?

Is this a Cue?...if I had diagnosis of PTSD same situation favorable CNP  what stopped them from going back to 2002?

Help explain this to me I've filed a claim for an early effective date from 2015 back to 2002 from the original claim based on new evidence..

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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If it was me. And I did this on mine. I am guessing you have new evidence beyond 2018 that hasn't been deiced on. I would file a 21-0995 new and material evidence claim and ask the VA to CUE it's self on the EED you can use a 21-4138 and ask the to CUE them self's on the EED too. 

I read all I could find in the forum's on CUE errors.

https://community.hadit.com/topic/54079-bertas-cue-template/

https://community.hadit.com/search/?q=CUE Error&quick=1&type=forums_topic&item=90002

 

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9 hours ago, ddm39142002 said:

If they went back to 2015 to my denial that wasn't appealed. Why won't they go back to 2002 to a favorable CNP as written by my Claims rep to 2002?

You may very well have a CUE (Clear Unmistakable Error) but without reviewing your records we do not know what the VA had or did not have back in 2002. I would suggest that you run this by an accredited representative or an accredited attorney. You do not have to hire an attorney until or if your appeal goes to the CAVC, then it is free. If this was a recent decision, made within the last year, less than 365 days it would be a lot simpler and easier to simply file a Supplemental or an HLR or a Direct Review Appeal to the BVA. Keep in mind that the Supplemental or the HLR may also be denied, and you will have to file an appeal to the BVA. 

I am in a similar situation with a different disability and the VA ignored my request and denied my claim for an EED. The VA even sent me to an updated C & P exam and still ignored their examiner’s medical opinion. I filed a 0995 and the VA did a rubber stamp and denied it a second time and now my appeal is sitting at the BVA waiting for it to be reviewed by a judge.

9 hours ago, Rattler767 said:

I read all I could find in the forum's on QUE errors.

Can you please correct your post, as far as I know there is no such thing as a QUE it is called or considered a CUE (Clear Unmistakable Error). Also, I think the form you are referring to is a 21-4138. Just for clarity we should try our best to give the most accurate information as possible. Trust me, there is always someone correcting someone's posts to help a veteran. 

VA Form 21-4138

Edited by pacmanx1
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You may very well have a CUE (Clear Unmistakable Error) but without reviewing your records we do not know what the VA had.

May thing is the VA bva isn't put all the evidence in decision by law.

Your decision should show the evidence used to make the decision .

Negative and positive evidence.

I just don't see this on any of my decision.

That will stated they received the service records. But don't address the positive or negative evidence in the service. Record.

I have a issue like this I apply for mental health 2003 it has remaining pending in appeal status Since.

The cavc remand it to bva.

The issue is I used service records to reopen 2018 an was granted 70% on appeal.

VA will not address the service records

 they will not address the effective date or a appeal reopen using service records. By law. The appeal was granted smh

Just got a soc from the VA an all it stated is the pending appeal was closed 2003.

Nothing else I can't make this up.

I am ready to file a cue.

So I believe a veteran can challenge a bva VA decision that does list the evidence of record.

If they don't talk about the negative and positive evidence in the record.

The veteran can never get the benefit of the doubt.

If you file a cue make sure you use the law cfr VA manual.

The benefit of doubt the VA not listing a veteran evidence on a decision.etc

You cant cue how the VA weight the evidence.

 

Disclaimer I am not a veteran agent an am not acting as one.

 

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You have been given good advice; no one knows if you have CUE until your records have been reviewed.  

This said, your 2002 "claim date" is only HALF of the regulation.  Remember your effective date is the later of "the date of claim" or facts found, which is the date the doctor said your symptoms began.   We dont know either the date the doc said your symptoms began, nor do we know the (date) the doc first diagnosed you with PTSD.  

There are, however, many exceptions to the general rule, above.  Already mentioned is if you submitted new and relevant evidence during that period, 2002-2018, especially in the 1 year appeal period AFTER you received the 2002 decision.  This can result in an earlier effective date via 38 cfr 3.156.  

We also dont know if you filed an "informal claim" for increase which could have been done, for example, if you told a doctor you were unemployed/unemployable, who was treating you for SC conditions, such as PTSD.  Formal claims were not required until about year 2019, so its possible you made an informal claim.  It would need to be in, you guessed it, your records.  

However, based solely on what you posted, I will take a wild guess and say you have a great point, and may well deserve an effective date as early as 2002, or in some cases earlier still, "if" you applied for benefits within a year of discharge.  

Rather than dwell on my unqualified interpretations (I have no legal training), you should read the regulations yourself, or, better yet, discuss this with a NOVA attorney, here: https://www.vetadvocates.org/cpages/sustaining-members-directory

If you did not know this, most attorneys who represent Veterans will do a "case review" to see if they think your case has merit, at no cost to you.  Further, you wont have to cough money up front, you would only need to pay the attorney out of your back pay, typically 20 percent.  

Lastly, attorneys are very busy, and also have a market "niche" they like.  So, if the first attorney says no, dont give up but contact another one or 2.  I was turned down by 2 attorney's and the third attorney won me an earlier effective date, at very low cost.  Reason:  EAJA pays the fees for Veterans at the CAVC level.  

Other than enlist an attorney's help, if you decide to go it yourself, read the regulations and see which, if any, applies to you.

https://www.law.cornell.edu/uscode/text/38/5110

 

Edited by broncovet
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Thanks for the correction pacmanx1. You should see what 800-Betty does when my dyslexia kicks in and I quote the 21-3841.  broncovet wild guess you are talking about is referred to as SWAGE methide. (Scientific wild ass guess) 

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Mr cue You are right in that some of my denials they never list or refer to the service records. Only evidence that you submit.  The other problem is they often do not give relational for there decision.  I don't remember at what point it is but the VA doesn't have a duty to assist until it hits a certain level. I have read a bunch of BVA decision that quotes it. What is confusing is people miss understand "duty to assist," with actual assistance from the VA.

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