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 

[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, 2023 by pacmanx1