Would this be a CUE claim?

[Mideis]

I filed some intents on Nov 30,2021. On Nov 29th 2022 I filed my claims. They were on 

Supplement claim for tbi

migraines secondary to tbi

Supplement claim for lumbar discs

Allergic rhinitis

My tbi claim was combined with ptsd for an overall rating of 70%. Migraines granted at 30%. RH sciatica 10% and allergic rhinitis 0

my overall combined rating is 90% effective Jan 5 2023

On January the 2nd I mailed out my award for fers disability which I received in July 2012. I was retired over my back which was rated 10% then. I also received ssdi dated back to July 2012 which was only claimed as my service connected disabilities.  I sent that as well as about 10 years of evidence from private doctors. A nexus and supported questionare and statement from my civilian doctor stating I was unable to work due to my service connected disabilities. 

in March I received a letter from the va stating they received my evidence on January 6 2023 and that I needed to make a new claim based on that evidence   But that claim from November was closed fast. Less than 3 weeks after I saw the c&p doctors

So my question is that, why didn’t the va use the evidence they received 1 day after the claim was closed ?  Would this be a cue claim or something else. It’s still a month out before I see the dav service officer 

[brokensoldier244th]

Because it was closed.

All evidence is admissible, up to the point of finalization- I see claims every day where its in a rating stage but not rated, but there is new evidence received- RFD (ready for decision) isn't 'closed' so it is added to the running claim. Once it has been finalized, though, that's it- it's done. You can argue for an increase based on New and Relevant information, or you could appeal the original decision, although it sounds like the info you would want to appeal with, while new and relevant, wasn't available at the time of the rating so it wouldn't be an error. Unless we had other known means of obtaining it, like 21-4142 auth to request it from your private providers but didn't, or you supplied it and it was overlooked it wouldn't be insufficient development. 

Edited May 14, 2023 by brokensoldier244th

[broncovet]

If you dispute any portion of the decision, file a nod as you are apparenlty in the 1 year appeal period.  At the same time, I suggest submitting a new claim as suggested by the va letter.  

My reasoning:

   The CUE standard of review is higher, much higher than an appeal.  This means you have a much better chance of getting an appeal approved.  With cue, the veteran forfeits the benefit of the doubt, while appeals retain this "tie goes to the Veteran".  

    Unless you are a professional claims advocate, I never advise forfeiting any of the tools veterans have in dealing with va.  Instead, utilize all the tools available, especially the benfefit of the doubt.  Thre are a percentage of claims granted via benefit of the doubt, that will fail under the cue standard of review.  

    VA claims are challenging enough, we Vets go against a giant VA, armed with 500 lawyers at their dispostal.  So, I do everything I can do to even up the odds.  

   Finally, you can file a cue anytime, so if things change you can still file a cue later, but you may well be glad you appealed in the 1 year time frame.  I have never met one Veteran who said, "gee I wish I would have missed the one year time frame of appeal".  Not one.  

[Whodat]

3 hours ago, Mideis said:

I filed some intents on Nov 30,2021. On Nov 29th 2022 I filed my claims. They were on 

Supplement claim for tbi

migraines secondary to tbi

Supplement claim for lumbar discs

Allergic rhinitis

My tbi claim was combined with ptsd for an overall rating of 70%. Migraines granted at 30%. RH sciatica 10% and allergic rhinitis 0

my overall combined rating is 90% effective Jan 5 2023

On January the 2nd I mailed out my award for fers disability which I received in July 2012. I was retired over my back which was rated 10% then. I also received ssdi dated back to July 2012 which was only claimed as my service connected disabilities.  I sent that as well as about 10 years of evidence from private doctors. A nexus and supported questionare and statement from my civilian doctor stating I was unable to work due to my service connected disabilities. 

in March I received a letter from the va stating they received my evidence on January 6 2023 and that I needed to make a new claim based on that evidence   But that claim from November was closed fast. Less than 3 weeks after I saw the c&p doctors

So my question is that, why didn’t the va use the evidence they received 1 day after the claim was closed ?  Would this be a cue claim or something else. It’s still a month out before I see the dav service officer 

Not to change the subject but you stated you have filed your claim 29 Nov 22. You are one of the lucky ones to have a quick turn around. I filed mine Nov 7 2022, had C&P Nov 29th still sitting there.  

[Rattler]

brokensoldier244th

Ok so I am confused on a supplemental claim it may be because if the AMA. I thought you could file a supplemental claim any time when you had new medical evidence. The one I recently filed dated back to 1982 so that would have made it technically a legacy claim.

[pacmanx1]

46 minutes ago, Rattler said:

I am confused on a supplemental claim it may be because if the AMA. I thought you could file a supplemental claim any time when you had new medical evidence. The one I recently filed dated back to 1982 so that would have made it technically a legacy claim.

As far as I know, any claim filed after February 2019 are considered AMA claims. Even if the veteran is filing to reopen a claim prior to the February 2019 date or simply asking for an EED (Earlier Effective Date) the claim is still considered an AMA claim. The only real legacy claims are on/in appeal and or remand.

My current remand is dated 1998 and I just received a BVA Decision and if the VARO does not address my issue, my claim is going back to the CAVC to address the issue of my JMR (JOINT MOTION REMAND), and it is still considered as a LEGACY CLAIM/APPEAL.

[brokensoldier244th]

You can, you just don't get the original filling date if you file the supplemental more than a year after the denial or rating.