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 by brokensoldier244th (see edit history)

[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. 

[pacmanx1]

7 minutes ago, brokensoldier244th said:

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. 

Can you please cite or give what regulation that support your statement? 

[brokensoldier244th]

[pacmanx1]

Thanks, still there is a little confusion in my head because I also was considering 38 U.S.C 5108 (A) 5108. Supplemental claims

(a)In General. If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall re-adjudicate the claim taking into consideration all of the evidence of record.

38 USC 5108 - Supplemental claims (govregs.com)

 

IMHO, I may be wrong, I don't think it is a catch all because the VA is requesting veterans to fill out supplemental claims based on CUE Claims and Claims Based on 38 CFR 3.156 which states that the VA has to consider all the evidence of record. There is also 38 CFR 3.2500 and 38 CFR 3.2501 which states: 

.2500 Review of decisions.

(a) Reviews available.

(1) Within one year from the date on which the agency of original jurisdiction issues a notice of a decision on a claim or issue as defined in § 3.151(c), except as otherwise provided in paragraphs (c), (e), and (f) of this section, a claimant may elect one of the following administrative review options by timely filing the appropriate form prescribed by the Secretary:

(i) A request for higher-level review under § 3.2601 or

(ii) An appeal to the Board under § 20.202 of this chapter.

*****(2) At any time after VA issues notice of a decision on an issue within a claim, a claimant may file a supplemental claim under § 3.2501.*****

eCFR :: 38 CFR 3.2500 -- Review of decisions.

3.2501 Supplemental claims.

Except as otherwise provided, a claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim (see § 3.1(p)(2)) by submitting in writing or electronically a complete application (see § 3.160(a)) on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending (see § 3.160(c)) or has become finally adjudicated (see § 3.160(d)). If new and relevant evidence 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. If new and relevant evidence is not presented or secured, the agency of original jurisdiction will issue a decision finding that there was insufficient evidence to re-adjudicate the claim. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed (see 3.103(c)).

*****(a) New and relevant evidence. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard under § 3.156(a)*****

eCFR :: 38 CFR 3.2501 -- Supplemental claims.

 

Edited May 14 by pacmanx1 (see edit history)

[brokensoldier244th]

They are all supplemental claims. The difference is in the recognition of the effective date. If you are alleging an EED or a CUE you are asking for that specifically and they have specific standards required, and specific things reviewed to determine if the effective date is correct.

If you just disagree with a decision, it's also a supplemental, but outside of a year after a decision the effective date is that of the newly filed supplemental not the original claim. 

[pacmanx1]

I can follow your point but using a cheat sheet can cause more problems for the veteran. IMHO, what you posted was a cheat sheet that does not really explain the regulation, and, in my case, I filed a claim for an EED (Earlier Effective Date), the VA reopened my claim as a claim for increase in rating percentage where I did not file because I was already maxed out in my rating and denied my claim even after the DBQs IMO listed the VAMC medical records and the examiner's medical opinion that I was diagnosed and treated at the VAMC years before my claim was granted. Now my appeal waits at the BVA.

[Mideis]

I was just curious about this, I’m sure the dav officer will tell me to file the appeal. He told me to bring in the award letter as well as the letter dated from March with the evidence.  Sucks being disabled, I’d trade it all to be healthy and have my career back

[brokensoldier244th]

5 hours ago, pacmanx1 said:

I can follow your point but using a cheat sheet can cause more problems for the veteran. IMHO, what you posted was a cheat sheet that does not really explain the regulation, and, in my case, I filed a claim for an EED (Earlier Effective Date), the VA reopened my claim as a claim for increase in rating percentage where I did not file because I was already maxed out in my rating and denied my claim even after the DBQs IMO listed the VAMC medical records and the examiner's medical opinion that I was diagnosed and treated at the VAMC years before my claim was granted. Now my appeal waits at the BVA.

If you wanted something more specific you could have asked. I was answering Rattlers general question. 

[brokensoldier244th]

8 hours ago, Mideis said:

I was just curious about this, I’m sure the dav officer will tell me to file the appeal. He told me to bring in the award letter as well as the letter dated from March with the evidence.  Sucks being disabled, I’d trade it all to be healthy and have my career back

Yup, and if you want to you can print off prior decision letters at VA.gov under your claims status, too. That way perhaps they could identify some other claim that may have not been rated correctly, or if evidence was submitted but not listed as evidence in the decision letter.

[pacmanx1]

10 hours ago, brokensoldier244th said:

If you wanted something more specific you could have asked. I was answering Rattlers general question. 

Yes, you are correct. I took issue with your post because I just won my second 1998 effective date from the BVA and it was based on 38 CFR 3.156 and a medical opinion dated after February 2019. The regulation can go both ways. The VA/BVA denied my claim for over two decades and I used the exact same regulation to get the BVA to correctly rate and grant my appeal. The VA does not always consider the correct evidence and the correct regulation and veterans has to show the VA their errors. It is very important for veterans to get very familiar with the regulation that pertains to their particular disability or disabilities and their symptoms.  

[brokensoldier244th]

I agree, they don't. I have to get into the weeds with Quality raters sometimes to justify actions that I take on the claims that I work.

3.156 addresses evidence that was previously submitted but not considered due to VA error, or subsequent evidence that clearly shows that the contention should have been rated X from Y date instead of whatever they decided originally, and since you were appealing for an EED the general rules do not apply. In the abstract, most veterans that file a claim after a decision closes that isn't based on something like EED, or 1151 (VA malpractice), or some special OIG review, will fall under the rule that the effective date is the date of the new claim since it was not a continued appeal. 

We all kinda got off the subject of the OP, though- he was asking why evidence submitted after the decision wasn't considered as part of the prior claim. Who said LandNav was easy, right? 

[Rattler]

So what the VA did when I filed a suplemsatel claim dating back to 1982 - 1983 on Jan. 8 of this year was close the claim and send me a letter telling me they wanted me to use form 21-526EZ. To my knowledge that would have killed my 1982 - 1983 EED. I raside all kind of hell with the RO and the WH hotline. They contacted the RO and the RO agreed with me that I was using the right form. I submitted it 4 more times up to Jan 30th and they did the same thing. I than filed a higher level review over the form issue. They never responded to the HLR but processes the supplemental. They ratted me on my right shoulder but denied me on my right wrist because I did not go for there C & P Exam and the Rater wanted a DBQ in the wrist. The problem is that I waived all C & P Exams because I used my own doc to do an independent medical exam. He addresses both the right shoulder and right wrist in his 14 page IMO. I originally thought that the wrist was enclouded in the arm and shoulder DBQ. I went back to the DOC and he did an exam  and the wrist DBQ.  paxmanx1 and I have been PM each other about this. I would be interested in seeing what you think about this. 

I am going to file another supplemental with a 1 or 2 CUE's. I am debating on asking for a HLR with the phone call as it will go faster and that is how I got the EED on my PSTD. 

I will upload the Letter hear so you all can review it and see the wrist denial when I get a min to redact it. 

When I get a min I am going to open a thread on my PTSD and another CUE on the EED. The VA claimed my PTSD started in 1977 at the time I got out. 

[Rattler]

13 hours ago, Mideis said:

I was just curious about this, I’m sure the dav officer will tell me to file the appeal. He told me to bring in the award letter as well as the letter dated from March with the evidence.  Sucks being disabled, I’d trade it all to be healthy and have my career back

I don't know you DVA officer but most this is way above some of the stuff most VRO know how to do. You may have a good one and I may be wrong.

[broncovet]

Perhaps, I can explain New Evidence under 38 cfr 3.156:

There are "2" forks, here:

1.  NEW SERVICE RECORDS.  (38 CFR 3.156 C).  In a nutshell you should always get the effective date of the original application, if awarded under 38 CFR 3.156C, new service records.   As always, there is a caveat:  Getting SC is one thing, getting a disability percentage "still" requires that your symptoms meet the applicable disability percentage criteria.  This means, essentially, the facts found, or the date the doc said you became disabled.  

2.  New EVIDENCE.  (as opposed to new service records, above).  In the event you submit new evidence, and are awarded, you need to submit the new evidence within one year of the denial.  If you do not submit new evidence within a year, then the effective date becomes the date you submitted the new evidence.  As above, there is always the caveat of "facts found", meaning you are limited by your symptoms.  

     Example:   You are denied for hearing loss.  14 months after the denial, you submit new evidence which demonstrates you were, in fact, exposed to excessive noise in service, and that excessive noise caused your hearing loss, now service connected as a result of your submission of new evidence.  In this example, your effective date will be the later of the date you submitted new evidence, or the date the hearing professional said your hearing loss began.  

      There is something called a "staged" rating (aka "Fenderson" rating).  For example, your hearing loss worsened in the long application/appeal period, which would need to be documented.  In this example you could get 10 percent back to the date you originally filed, and if the evidence supports it, you could get 20 percent or more with an effective date when your audiologist documented your hearing loss worsened.  

[pacmanx1]

On 5/15/2023 at 4:14 PM, broncovet said:

Perhaps, I can explain New Evidence under 38 CFR 3.156:

Bronco, you left out the most important part of 38 CFR 3.156 which is material evidence that the VA changed to relevant evidence. This evidence is not new, it is evidence already (exist) within the record but not considered and or adjudicated with the claim or rating. Because my claim was deemed as an unadjudicated claim/appeal. The VA/BVA was ordered several times to review my entire records to address the rating percentage and the effective date. In my case the CAVC JMR ordered the BVA to do this and the BVA directly service connected my disability to my military service. The VA low balled my initial rating and screwed up my effective date until my appeal went back to the CAVC a second time. Prior to my second CAVC JMR, the VA sent me to an updated medical exam and opinion and due to the fact that my claim has been in continued pursuit since 1998. The BVA granted my maximum rating percentage for the entire time on appeal.

To get a set rating for the entire time please see 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.

  (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.

So, in my particular case no staged (Fenderson) rating, I was awarded the maximum rating for the entire time which awarded me a second EED of TDIU benefits.

P.S. I should have written that the VA changed the regulation from material evidence to relevant evidence and not pertinent evidence. I just want to make it clearer. 

Edited May 17 by pacmanx1 (see edit history)