Pending Claims Doctrine

[1776Marine]

  Claim filed 1979, was never adjudicated, under the Pending Claims Doctrine, would filing a claim for a CUE ( Clear Undeniable Error) be in order, considering that the RO sent a request to appear for a C&P examination and the RO sent it to the wrong address, claim was denied on basis of not appearing for that C&P examination which, this Veteran was never properly notified? 

[pacmanx1]

Examples of situations that are not clear and unmistakable error —

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

eCFR :: 38 CFR 20.1403 -- Rule 1403. What constitutes clear and unmistakable error; what does not.

[broncovet]

Welcome to haidt!

The VA has "an unlimited period of time" to adjuticate your claim.  Sadly, IMHO, this probably does not meet CUE standard of review, since there was no decision, how can you attack that decision?

But, all is not lost!  There are other, probably better ways of doing this.  The first way is to file a supplemental claim, citing the 1979 application, or even dont cite it.  You may have to fight for your effective date, but, with the claim still pending, you should eventually win, (your effective date back to 1979) once you get SC for the condition applied.  

Have you subsequently gotten SC?  

If you have been, but at the wrong effective date, then file a nod disputing the effective date. 

Still another way of doing this, other than filing a supplemental claim (or, in addition to filing supplemental claim) is to inquire as to the status of the 1979 claim, but be sure you have your ducks in a row, as VA is likely to disavow such a claim.  Frankly, its likely that it was shredded or otherwise mishandled.  

It may not be too early for you to consider getting help from a lawyer from NOVA, depending on your situation and circumstances.  Generally, lawyers wont/cant represent you until/unless you have at least one denial.  Again, there are ways, however.  

Once such method is to file a writ of mandamus to compel VA to adjutciate said application from 1979, but that is down the road and you are not ready for that yet.  You would need to "set the stage" for a writ, such as asking VA the status of your 1979 claim, and waiting for their response.  A writ is the last resort, and you need to try everything else first, and there are many things for you to try first.  The retro potential back to 1979 is massive and a game changer.  Depending upon the severity of your disabilities, this could be a half million dollars or more of retro potential.  

https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

By the way, the VA tried this same BS with me, I eventually won benefits back to the original effective date, but they fought me the whole way.  It was a sweet victory.  And, yes, I had to get a lawyer..several times, since VA fought me time after time, at each step of the way.  Its the way VA does this.  

Since I have not reviewed your file, I can not answer definately, what is the best route to go.  There may be other ways, that would take a review of your cfile, to handle this.  Are you SC, what percent, and when was it awarded?  

You can contact pretty much any of the lawyers in the link above, and one or more will likely advise you what to do.  Some may offer representation, others may decline.  I dont recommed you dropping this.  Keep fighting.  VA is likely gonna fight you every step of the way, but if you keep going, you should win.  

In regard to effective dates, the "date of claim" is only "half" the equation.  The other half is "facts found".  (This means the doc says you were disabled).  The effective date is the later of the date of claim or facts found.  So, if a doctor stated "you did not become disabled" in 1979, but not until July, 2024, then you could only get one month retro.  

Its all complicated and we would need much more information to give you better advice, I just listed a few of your options.  

Since I dont know your medical history or cfile. military history, I have to guess at what is your best options.  The one thing, however, is clear: 

YOU SHOULD FIGHT FOR the  BENEFITS  you deserve AND NEVER GIVE UP.   These benefits can extend to your family, too, even after you die.  (such as DIC, or DEA).  

Edited August 10 by broncovet

[Vync]

If you have not already done so, put in a request for your claims folder. It will take a while to receive it, but at least you can go through everything page by page to see what the VA actually did do.

A CUE might be an option though, just my unofficial opinion. As mentioned, a "duty to assist error" is generally not a CUE. Those happen when the VA was supposed to help do something, but just did not do it. However, if you can locate the initial C&P notification letter, take a look at the TO address. See if it was addressed to you at your address at the time. If it was sent to someone else or an incorrect address, that -might- qualify as an actual error. After I went through my claims folder, I found several pieces of correspondence that were for other vets. I mailed those back to the VA. CUE must also have a potential benefit, which in this case would be the benefits of being SC, increased ratings, or whatever you filed for. Also, keep in mind the address might have been correct, but the error could have been on the part of the postal service. The VA believes in the Presumption of Regularity which means that government employees are assumed to have done their job properly, but we all know mistakes happen every day. It the address was correct, then the VA would probably deny CUE.

[Rattler]

On 8/10/2024 at 7:44 AM, broncovet said:

Welcome to haidt!

The VA has "an unlimited period of time" to adjuticate your claim.  Sadly, IMHO, this probably does not meet CUE standard of review, since there was no decision, how can you attack that decision?

But, all is not lost!  There are other, probably better ways of doing this.  The first way is to file a supplemental claim, citing the 1979 application, or even dont cite it.  You may have to fight for your effective date, but, with the claim still pending, you should eventually win, (your effective date back to 1979) once you get SC for the condition applied.  

Have you subsequently gotten SC?  

If you have been, but at the wrong effective date, then file a nod disputing the effective date. 

------

Once such method is to file a writ of mandamus to compel VA to adjutciate said application from 1979, but that is down the road and you are not ready for that yet.  You would need to "set the stage" for a writ, such as asking VA the status of your 1979 claim, and waiting for their response.  A writ is the last resort, and you need to try everything else first, and there are many things for you to try first.  The retro potential back to 1979 is massive and a game changer.  Depending upon the severity of your disabilities, this could be a half million dollars or more of retro potential.  

https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

By the way, the VA tried this same BS with me, I eventually won benefits back to the original effective date, but they fought me the whole way.  It was a sweet victory.  And, yes, I had to get a lawyer..several times, since VA fought me time after time, at each step of the way.  Its the way VA does this.  

---

On 8/13/2024 at 7:23 PM, Vync said:

If you have not already done so, put in a request for your claims folder. It will take a while to receive it, but at least you can go through everything page by page to see what the VA actually did do.

A CUE might be an option though, just my unofficial opinion. As mentioned, a "duty to assist error" is generally not a CUE. Those happen when the VA was supposed to help do something, but just did not do it. However, if you can locate the initial C&P notification letter, take a look at the TO address. See if it was addressed to you at your address at the time. If it was sent to someone else or an incorrect address, that -might- qualify as an actual error. After I went through my claims folder, I found several pieces of correspondence that were for other vets. I mailed those back to the VA. CUE must also have a potential benefit, which in this case would be the benefits of being SC, increased ratings, or whatever you filed for. Also, keep in mind the address might have been correct, but the error could have been on the part of the postal service. The VA believes in the Presumption of Regularity which means that government employees are assumed to have done their job properly, but we all know mistakes happen every day. It the address was correct, then the VA would probably deny CUE.

I agree with broncovet in that I do not think it raises to a CUE Claim standard as you have no denial letter. I agree with Vync that you should request your C-File it can take 6 to 9 months. You should find in your C-File the original claim application and any other doc's that you filed with it. The VA tried (and is still trying) to say that I never filed a claim in 1981.  But because I had my C-File I was able to pull there documents that proved it. I am still working on the EED.

 

[Vync]

1 hour ago, Rattler said:

I agree with broncovet in that I do not think it raises to a CUE Claim standard as you have no denial letter. I agree with Vync that you should request your C-File it can take 6 to 9 months. You should find in your C-File the original claim application and any other doc's that you filed with it. The VA tried (and is still trying) to say that I never filed a claim in 1981.  But because I had my C-File I was able to pull there documents that proved it. I am still working on the EED.

I'll add to what @Rattler said.
  First, the VA has an online option for you to supposedly download/view your decision letters at https://news.va.gov/116268/view-download-va-decision-letters-online. The reason why I said "supposedly" is because I went and checked mine and found some were incomplete and others missing outright. You might get lucky and find what you need.
  Second, if it is not online, if you are signed on (i.e. POA'd) with an accredited agent or VSO, you can ask them to go into the system and see if they can find that denial letter. They should be able to print it and provide it to you.