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Berta

Requesting The Va To Call Cue On Itself

40 posts in this topic

This is part of my recent CUE issue pending that can be used as a template:

Department of Veterans Affairs October 28,2012

Philadelphia Regional Office

PO Box 8079

Philadelphia ,Pa. 19101 Re: 310/3POST/CG

Nehmer decision dated January 17,2012

C # XX XXX XXX

and

Department of Veterans Affairs Original Agency of Jurisdiction

Regional Office

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202 2478

REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR JANUARY 17th 2012 DECISION

I was advised by NVLSP to send my correspondence to both above VAROs to determine who holds jurisdiction over this request .

I respectfully request the VA to call a clear and unmistakable error on part of the above January 17,2012 decision from the Philadelphia VARO and to correct it.

This is a separate issue from my recent Section 1151,38 USC claim filed with the Buffalo VARO on September 21, 2012.

I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

The VA's CUE lies within this statement on page 2 of the January 17th,2012 decision :

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. Exhibit A

That is wrong based on all evidence in VA's possession at the time of the veteran's death.

Page One of Seven

The veteran, Rodney F. Simmons was totally and permanently disabled by his August 9,1992 Section 1151 CVA until his death on October 14, 1994. His”residuals”certainly did not alter the medical fact of his total and permanent disability from his Section1151 ,38 USC “ as if service connected” stroke on August 9,1992.

He was certainly housebound and that is not the issue here.

The VA's failure (CUE) to consider and evaluate the evidence VA had in their possession manifestly altered the outcome of the decision referred to above ,January 17,2012, to my detriment as the claimant and surviving spouse of the veteran, Rodney F. Simmons.

CUE regulations are found within 38 USC, 5109A.

The BVA within http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp08/Files5/0844495.txt, clearly

defines the same basis for my request that the VA call a clear and unmistakable error on itself due to an obvious violation of the evidentary requirements of basic VA case law.

As the BVA decision states ,

In part:“The veteran's assertion of CUE is based on VA's failure to

consider highly relevant medical evidence, that is, the RO

denied the existence of medical evidence that was clearly of

record at the time of the rating decision. The Board is

convinced that the RO committed error based on the record and

the law that existed at the time the decision was made and

had the error not been made, the outcome would have been.......

(I went on with some citations regarding BVA decisions as to the LEGAL issue.

I then enclosed Exhibits A through N and explained every exhibit to the VA in terms they could understand and made the point that each piece of evidence I enclosed warranted a 100% rating from Aug 1992 to Oct 1994.

SSDI records, Student Loan discharge, VA Neuro 100% P & T med recs, Letter from Acting Under Sec VA, R. Vogel 1994 letter to the veteran, claims judge, Agent Orange settlement fund, etc etc, the veteran's Voc Rehab records,FTCA stull, MRI, autopsy... real solid stuff.

all clearly stating or revealing medically that the veteran was 100% P & T from Aug 1992 to Oct 1994 due to his CVA which VA admitted they caused under 1151 and FTCA settlement. They owe me more cash.

Even if they loose most of that evidence , any piece could stand alone anyhow.

ALL of the evidence except for one reference (which can be checked) was in VA's possession at time of their CUE in the January 2012 award letter.

Now I dont have to finish that article on this maneuver.

To get VA to CUE itself requires

1. a legal error in a decision challenged DURING the appellate period (meaning the day of the decision and within the NOD timeframe)

2. a legal error that manifested an altered outcome to the claimant's detriment (ie improper retro amount)

3. A formal request that VA CUE the decision, supported by copies of probative legal/medical evidence that was in VA's Possession at time of the decision that the claimant is requesting themselves to CUE. This type of request must be made within the appellate period.

I might post ,my Dec 2011 CUE request too----I did that by Fax,IRIS, and phone with VA Central and don't have a lot of hard copy stuff on it. VA Central turned on that one in 3 weeks.

My 2005 CUE request started out with Fax stating "What the Hell is this," sent to the Director of the Buffalo VARO and IRIS complaint to VA Central and copy in email to my wimpy vet rep.

They (VA)moved on that fast too.

I think that one is documented 2 PCs ago.

If a veteran or surviving spouse like me has a solid leg to stand on, (with evidence of CUE criteria above) they then need to kick the VA in the A-- with their other foot ---during the appellate period. They need to watch the NOD deadline clock too.

VA keeps thousands in comp when vets don't challenge an erroneous decision ,even if it is an award letter.

Either with this maneuver or by preparing their NOD and appeal , shaped ....not for the RO these days, or for the black hole AMC,

but shaped instead, for the BVA.

Due to the critical backlog.

This doesn't stop the NOD clock!

If the VA ignores or farts around with this type of request,without a proper resolve, make sure you file a timely NOD,raising the same legal error issues.

Edited by Berta
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Thanks Berta. I have heard you discuss "VA cueing themselves" before, and I am glad you posted this. As usual, you are right on. I do agree with Basser, however, in that too many Vets file a "CUE" when a NOD would achieve a better result.

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Sorry for double posts I cant fix it. I live at high elevation and when a strong wind hits my satellite dish that happens.

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How come we can't have you as a VA rep. instead of the jack a$$ we have. My hat off to you, you are a person to have on our side.

God Bless you

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Sorry for double posts I cant fix it. I live at high elevation and when a strong wind hits my satellite dish that happens.

Berta,

I dumped the duplicative post and merged the two

topics into one.

Looks like you're doing great !

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Berta

I re read what you posted, which, by the way is excellent and on target for you.

Two questions, tho:

1. Can you cite the regulation (fast letter, case law, CFR, etc) that says that the VA CUE'ing themselves must be done in the appeal period? (Your item #1 above). I ask this, not because I dispute what you say, but because I would consider the same. Does this work for both BVA and RO decisions? I seem to recall that you said it does indeed work for both BVA and RO decisions. Maybe this is one of those things that "this is how they do it" but it isnt written down anywhere.

2. Your point of " Even if they loose most of that evidence" is again, on target and consistent with my experiences. I think that 2008's shreddergate is back, in fact, it never really went away. I do think that sometimes, instead of shredding evidence they get rid of it by simply placing it in another Veterans file. From a Vets point of view, this amounts to the same thing.

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" Can you cite the regulation (fast letter, case law, CFR, etc) that says that the VA CUE'ing themselves must be done in the appeal period? (Your item #1 above). "


There is no reg etc. I made this maneuver it up.

The VA has cued itself many times ,usually to try to reduce a veteran's comp.

So if they can do that, so can we.

I have discussed with many vet lawyers who had never considered this at all.


My point on the appellate period is this.....


My experience in Dec 11,2011 went so fast that I didn't need to file a NOD.


In my recent CUE request letter I posted here, I had put this off too long. I should have done this last February but didn't even want to think about any of it again,because, like all of my claims, what I thought was a simple Nehmer claim, VA had managed to turn into a travesty of justice. I wasn't ready to do battle again for many months.


I recently did file a timely NOD telling them they must adjudicate the 'Go Cue yourself 'request first,otherwise they have profoundly violated my legal rights as a claimant.


(I geared this all for the BVA if it gets there)


BVA CUEs ,If a claimant feels the BVA made a CUE,they have to file a CUE Motion on that with the BVA.


The BVA site has info on how to do that.

It is on page 14:

http://www.bva.va.gov/docs/Pamphlets/010202A.pdf


I did that once, but the claim was granted on a different basis so my Motion for CUE with the BVA became a moot issue.


I posted the template and more info on Motions for BVA to CUE themselves here at hadit some time ago.

It is a completely different situation.


A claimant has to attack a VARO legal error sooner then later and way before the claim goes to the BVA because the BVA will remand it if the legal error had maniested an altered outcome, to te claimant's detriment.


I think I did a SVR show here on how the BVA works, last year in the BVA archives.







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Thank you Berta, for answering my question. I will add that I think your idea to ask the VA to CUE themselves, is frankly, brilliant.

We know the VA can/does "yell CUE" if/when benefits are erroneously awarded to a Vet. And, I will agree that on millions of claims there has got to be mistakes and there needs to be a way to rectify them.

I also agree there needs to be a way for Vets to "resolve and erroneous denial/lowball" without 4 or more years of appealate review.

I agree that Vets should try this..and it might just work.

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RO keeps asking for information from you ......but......when you send it they don't read it or acknowledge it.

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If the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

as within:38 CFR 4.3,4.6

http://cfr.vlex.com/...idence-19774393

by totalling ignoring probative and compelling evidence , the VA has committed a CUE.

I regret I didnt use this tactic on most of the initial decisions I got over the past 15 or 16 years.

What I mean by probative and compelling evidence is

1.having proof you sent the VA a properly prepared independent medical opinions that support the claim with a full medical rationale, done by a doctor with expertise in the filed of the disability. AND VA totally ignored the IMO.

  1. ignoring SSA records that fully support a TDIU claim because they are based sole on the same SC the veteran has.

  2. Ignoring an autopsy

  1. Parcing a C & P exam results...this can be a major problem.....VA left out the actual ending words from a C & P doctor's report once for my original 1151 claim.I raised hell with the doctor and then he read the actual C & P report to me over the phone, and mailed it to me, and his final words ,if VA had not conveniently forgot to put them into the decision....would have led to an award. And eventually did

Years later when I reopened I called him (we had made up) and he agreed with my DMII AO claim but said since I knocked his C & Ps down twice ,there was no way he would be asked to opine on my DMII claim.

  1. Any private medical records that you know the VA has because they asked you to sign an authorization form 21-22 I think the form is, to get them.Yet they did not list as Evidence or consider in the decision.

6 If the VA awarded 70% SC and the veteran is not employed and the VA knew that, but did not mention or consider TDIU, that is usually a CUE they have made.

      1. If the medical evidence warrants a SMC consideration and the VA fails to consider SMC, that is a CUE .the VA has made by violating the Mandatory statute of the SMC regulations.

  1. I recently read a widow's case at the CAVC. The VA upon her reopen for DIC had found her to be an ineligible spouse and denied her claim on that basis They were dead wrong. They had made a CUE in that decision.

9 If the VA sends the wrong amount of retro, along with an audit statement (they are difficult to figure out sometimes), and the manifested outcome meant you got less then you should have in retro they have made a CUE.

I believe, with the enormous pressure on the ROs these days to get the backlog moving, more and more mistakes in initials decision will be made. Mistakes that could raise to the level of asking VA to CUE itself and expecting them to do that.

I think many here disagree with this tactic and if used, the NOD deadline must be met if VA has not properly addressed this type of request within the crucial first year after the decision, but this has worked for me many times and I cant wait to use it again if I have to.

VAROs often dont even read a NOD until a year has passed. Someone at my VARO told me NODs are color coordinated for that year at the VARO to pass...dont know if that is true.

The enemy of VA claimants is not the VA...it is Time.

If a CUE request produces faster results, with no need at all for a NOD within that first year after the date of the decision, in my opinion, the veterans has staved off the long NOD, SOC, DRO, BVA, Remand to VARO 'hamster wheel' ordeal.

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The VA ignored medical evidence from my treating doctor 40 years ago. I filed a CUE. The BVA agreed it was a CUE. The BVA agreed that my doctor's evidence was ignored, but said it was not "undebatable" that this evidence would have changed the outcome of my decision. My CUE was "denied" and not "dismissed". It is sitting at CAVC now. The evidence from my doctor that the VA ignored was the only evidence that addressed both social and occupational aspects of my disability. The VA's evidence was just notes from doctors and other VA workers on psychiatric ward. According to the VA note of an unidentified ward clerk is just as compelling as the report of a clinical psychologist. The BVA says if there is slightest shred of evidence to contradict any evidence you produce then your evidence is not undebatable, therefore, not a CUE. This is a standard that is almost impossible to meet.

John

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I see that differently John:

"The BVA says if there is slightest shred of evidence to contradict any evidence you produce then your evidence is not undebatable, therefore, not a CUE. This is a standard that is almost impossible to meet."

My SMC CUE denials contradicted some evidence (which was established VA case law) and ignored the prime facie probative evidence.

I do see this as fact in some CUE claims that are denied at the BVA:

"but said it was not "undebatable" that this evidence would have changed the outcome of my decision. My CUE was "denied" and not "dismissed". It is sitting at CAVC now"

In VAOLA that means the medical evidence at time of alleged CUE and in the hands of the VA (no matter what part of the VA had it)did not raise to a ratable or compensable level that could have generated retro SC comp. from the original denial.

Then again the BVA cant make medical judgements or substitute their opinion for that of a medical professional I think that case is Colviin V Brown.

"The evidence from my doctor that the VA ignored was the only evidence that addressed both social and occupational aspects of my disability"

If that evidence had manifestedly changed the outcome, that is a bonafide CUE and you should succeed.

I admire your willingness to fight this.

Dont forget my SMC CUE claim took 8 years before a RO even read my legal evidence.And it wasnt my AOJ RO either.

But they also made a CUE in that award.

The evidence list with that decision was very long as it was also the AO IHD award too, but right away I could see they again had missed critical evidence and I filed another CUE against them during the appellate process.

I think they do this stuff deliberately to see if we will buy what they are selling.

It is never regarding minor retro issues. They forgot about 40 thousand with my CUE award and it was very easy to point out their legal error to them.

It will be interesting to see what they come up with next on my issues. I like war games.

Edited by Berta

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Yep it is Colvin V Brown...basic VA 101 case law.

Colvin can be found at the US CAVC . This is a BVA interpretation of it

“Additionally, at the time of the December 1955 decision, the 
Board was not precluded from relying upon its own medical 
judgment to support its conclusions.  Colvin v. Derwinski, 1 Vet. 
App. 171 (1991) (Board cannot substitute its own medical judgment 
for that of medical professionals).  A medical member of the 
Board participated in the December 1955 Board decision and was a 
signatory to that decision.  His signature signified agreement 
with the conclusions that the evidence, considered with the 
application of generally accepted medical principles, did not 
demonstrate that the Veteran had a psychiatric disability that 
should have been service-connected.  Bowyer v. Brown, 7 Vet. App. 
549 (1995) (Board's position was substantially justified in a 
pre-Colvin decision in relying on its own medical judgment).  As 
the December 1955 decision was ascribed to by the medical member 
of the panel, it cannot be said that all the evidence of record 
supported the moving party's position.  The opinion that the 
evidence was insufficient to establish service connection was 
supported by the medical member of the panel, and the Board 
apparently relied on his medical judgment in deciding the appeal.”

http://www.va.gov/vetapp11/Files1/1101465.txt

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Thanks, Berta, I wanted to contribute to the CUE discussion because the BVA has thrown around terms like "undebateable" even as they admit I had a CUE since all evidence of record was not before the adjudicators at the time of rating. The CAVC is saying that my CUE is just a "reweighing of evidence", and that there is an asumption that all evidence in VA's hands is reviewed. This is typical BS. You have a terrific grasp of the CUE concept as does Carlie and Phil. This is our only shot at justice for these old decisions where we young vets were screwed to the wall by the VA. I went years thinking all I should get was 10% and thinking the VA had used all the evidence my doctor and I had submitted. Now I and thousands of other vets have to jump over a very high wall to get what we could and should have got 30-40 years ago.

John

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Thanks, Berta, I wanted to contribute to the CUE discussion because the BVA has thrown around terms like "undebateable" even as they admit I had a CUE since all evidence of record was not before the adjudicators at the time of rating. The CAVC is saying that my CUE is just a "reweighing of evidence", and that there is an asumption that all evidence in VA's hands is reviewed. This is typical BS. You have a terrific grasp of the CUE concept as does Carlie and Phil. This is our only shot at justice for these old decisions where we young vets were screwed to the wall by the VA. I went years thinking all I should get was 10% and thinking the VA had used all the evidence my doctor and I had submitted. Now I and thousands of other vets have to jump over a very high wall to get what we could and should have got 30-40 years ago.

John

i did the same as john, that is thinking i was getting the correct rate/diagnosis all those years. i too am fighting for CUE. its worth the fight.

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Just to make one point....when they use the wrong diagnosis in the rhetoric for a claim that isnt a CUE. The diagnosis had top have come from a doctor so that is a medical issue and not an issue of being a legal error.

But when they use the wrong diagnostic code for a diagnosis and the DC code provides the veteran a lower rate of comp, due to wrong diagnosis, then that IS a CUE.

Since the Diagnostic codes and also the rating criterias are all in 38 USC and 38 CFR, they are "legal" determinations and not medical ones whenever the rater takes pen in hand and puts the wrong DC and then potentially the wrong % into a decision and therefore has made a legal error, if that error had cost the claim,ant compensation that was based on medical evidence.

I hope that makes sense.

I didnt even get a rating sheet for my last award. Has VA done away with rating sheets for Nehmer claims?

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Just to make one point....when they use the wrong diagnosis in the rhetoric for a claim that isnt a CUE. The diagnosis had top have come from a doctor so that is a medical issue and not an issue of being a legal error.

But when they use the wrong diagnostic code for a diagnosis and the DC code provides the veteran a lower rate of comp, due to wrong diagnosis, then that IS a CUE.

Since the Diagnostic codes and also the rating criterias are all in 38 USC and 38 CFR, they are "legal" determinations and not medical ones whenever the rater takes pen in hand and puts the wrong DC and then potentially the wrong % into a decision and therefore has made a legal error, if that error had cost the claim,ant compensation that was based on medical evidence.

I hope that makes sense.

I didnt even get a rating sheet for my last award. Has VA done away with rating sheets for Nehmer claims?

point taken and understood. congrats on your award

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Can someone point me in the right direction regarding whether or not this is a CUE.

My husband is 100% P&T for IHD but also has an anoxic brain injury.

He then became service connected for dementia secondary to IHD.

In his C&P exam by the VA board certified psychiatrist the Dr. stated YES when asked if the veteran has a diagnosis of traumatic brain injury.

In his rating decision dated Aug 3, 2012 (NOD clock is running out) the reasons for decision states Dementia, status post anoxic brain injury and not TBI which is a very big difference in SMC. The rating decision does not mention anything about TBI.

I do know that the criteria for TBI is from an external force but his residuals are even worse because his brain cells died.

Don't know which way to pursue his claim.

Can anyone help?

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If the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

as within:38 CFR 4.3,4.6

http://cfr.vlex.com/...idence-19774393

by totalling ignoring probative and compelling evidence , the VA has committed a CUE.

I regret I didnt use this tactic on most of the initial decisions I got over the past 15 or 16 years.

What I mean by probative and compelling evidence is

1.having proof you sent the VA a properly prepared independent medical opinions that support the claim with a full medical rationale, done by a doctor with expertise in the filed of the disability. AND VA totally ignored the IMO.

  1. ignoring SSA records that fully support a TDIU claim because they are based sole on the same SC the veteran has.

  2. Ignoring an autopsy

  1. Parcing a C & P exam results...this can be a major problem.....VA left out the actual ending words from a C & P doctor's report once for my original 1151 claim.I raised hell with the doctor and then he read the actual C & P report to me over the phone, and mailed it to me, and his final words ,if VA had not conveniently forgot to put them into the decision....would have led to an award. And eventually did

Years later when I reopened I called him (we had made up) and he agreed with my DMII AO claim but said since I knocked his C & Ps down twice ,there was no way he would be asked to opine on my DMII claim.

  1. Any private medical records that you know the VA has because they asked you to sign an authorization form 21-22 I think the form is, to get them.Yet they did not list as Evidence or consider in the decision.

6 If the VA awarded 70% SC and the veteran is not employed and the VA knew that, but did not mention or consider TDIU, that is usually a CUE they have made.

      1. If the medical evidence warrants a SMC consideration and the VA fails to consider SMC, that is a CUE .the VA has made by violating the Mandatory statute of the SMC regulations.

  1. I recently read a widow's case at the CAVC. The VA upon her reopen for DIC had found her to be an ineligible spouse and denied her claim on that basis They were dead wrong. They had made a CUE in that decision.

9 If the VA sends the wrong amount of retro, along with an audit statement (they are difficult to figure out sometimes), and the manifested outcome meant you got less then you should have in retro they have made a CUE.

I believe, with the enormous pressure on the ROs these days to get the backlog moving, more and more mistakes in initials decision will be made. Mistakes that could raise to the level of asking VA to CUE itself and expecting them to do that.

I think many here disagree with this tactic and if used, the NOD deadline must be met if VA has not properly addressed this type of request within the crucial first year after the decision, but this has worked for me many times and I cant wait to use it again if I have to.

VAROs often dont even read a NOD until a year has passed. Someone at my VARO told me NODs are color coordinated for that year at the VARO to pass...dont know if that is true.

The enemy of VA claimants is not the VA...it is Time.

If a CUE request produces faster results, with no need at all for a NOD within that first year after the date of the decision, in my opinion, the veterans has staved off the long NOD, SOC, DRO, BVA, Remand to VARO 'hamster wheel' ordeal.

Hello, I am wondering if I can get your thoughts. I think I have a good CUE case I am assiting with. I have a vietnam vet that I am helping that applied for benefits in the mid 1970s for nervous condition after a suicide attempt. While in the hospital they had him fill out the form for a claim. He was there for 2 months approximatly. We just found a form that the adjudication officer sent to the VA hospital that he was at requesting his records. 20 days later they denied the claim....clearly not enough time for the VA hosptial to send the records. They sent them about 5 months later after it was already denied. They never informed the veteran of that.

Fast forward to 2011 he makes another claim, gets rated at 30% for ptsd, he files NOD, he gets rated again earlier this year and goes up to 70%. We want to go after for EED. Any thought on whether we should ask them to CUE themselves (i'm thinking yes, but would like to hear what you think since you've been through this.

Thanks so much for any advice!

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Sorry for double posts I cant fix it. I live at high elevation and when a strong wind hits my satellite dish that happens.

Have you tried something like a Verison mi-fi instead of the satellite? Worked for me. Slowlane

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BigRed stated:

“We just found a form that the adjudication officer sent to the VA hospital that he was at requesting his records. 20 days later they denied the claim....clearly not enough time for the VA hosptial to send the records. They sent them about 5 months later after it was already denied. They never informed the veteran of that. “

They probably denied saying the claim was “not well grounded.”...the previous VCAA mantra that VA used to deny many claims in those days.

That could certainly be the basis for a regular CUE claim, citing 38 CFR 4.6, filed against that older decision.

How do you know VA got the records 5 months later?

I had a similiar situation regarding my recent CUE Yourself Request.

It involved my husband's SSA records and in my Nehmer decision I was quite shocked to learn that VA received those records until about 6 weeks before my husband died although they had the authorization forms for over a year by then.

Is it possible that this veteran was hospitalized while still AD in the Military in the 1970s?

Odd question I know but possible......

Does he have his complete SMRs?

I commend you on what you found, as to the fact that the VA did not have the hospital records when they denied the older claim.

It is amazing what value having a C file copy can be and then carefully going over everything in the C file.

Did the VA, when they awarded the 30% for PTSD ( called a nervous condition in those earlier days) indicate anything at all in that decision or the subsequent 70% decisions as to the older hospital records?

Has the veteran, since, obtained those older VA med recs?

When they awarded the 70% did they consider him for TDIU or was he employed ?

Can you scan and attach the 70% decision, with the vet's permission here? If so , cover all identifying stuff.

The recent decision might not have a CUE basis but that older 1970s decision, if it makes no reference to the VA hospitalization records, in my opinion, does.

In the NOD for the recent decision, if I were you, I would NOD the EDD with the same argument you raised here as to VA not having the older med recs.

You could make a CUE yourself request too on the same basis, to see what VA says on that.

Obviously he had a proven stressor for the SC awards, but I wonder if the stressor was, in fact, those older hospital records, indicating maybe VA has them but never acknowledged them to the veteran. ( hoping he would not challenge the EED)

When I had little NOD time left on my last CUE yourself request,I did file a NOD, asking the VA to address the CUE request first.

I also found the regs for a NOD extension time frame and even asked for the extension for good cause, and if not granted, then VA should consider the NOD as timely filed.

My point was two fold..... the NOD extension reg isnt challenged or used much and it has no definition of what VA considers good cause.

I dont expect the extension and told VA I dont need it if they properly resolve the CUE request.

I did this to see how VA handles these NOD extension requests, and the other reason is that I set this up for a possible BVA decision on the initial request that they CUE the decision.

Although the regulations are the same at the BVA and the VAROs, BVA lawyers have far more expertise then the VAROs in proper interpretations of those regs.

A BVA denial I got many many years ago (I had just won that claim at the RO under a different basis so that claim was moot anyhow) contained a caveat specific to my situation.

I used a copy of the BVA caveat in 2009 to get VA to pay me my FTCA offset.

I sent as well the specific regulations that in my case award the refund of the offset.I know there is no other documented situation like mine was, but still I felt the actual regulations as well as the BVA decision, with the caveat hghlighted, would promptly bring the refund.

I was wrong and had to get the OGC to send the VARO the same regs and BVA statement before they would pay me.

After OGC ordered the refund, the offset refund came ,but that was at least 8 months after the award.

My point is the BVA (and of course the OGC) clearly understood the regulations that applied to my claim and ,since they are lawyers, they are willing and quite able at the BVA, to properly interpret 38 CFR far better, in many cases, then a VARO rater is.

I sure would fight for a better EED for this vet.

Thank you for helping him!

Edited by Berta

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Gee I meant the VA Mantra ,previous to the VCAA.

Also you should raise the point for any CUE claim you file on the older decision that, with the veteran's hospitalization, that obviously indicated that his PTSD was at a ratable level when he filed that older claim.

SLOWLANE thank you....maybe the next PC will be what you suggested..........

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The lawyers at CAVC said that before 1992 the VA did not have to list all the evidence they had so you cannot prove they did not consider every bit of evidence before them or even know what was before them. Also, when you can produce evidence the VA did not consider that was in their possession for you to win a CUE there must be no evidence in VA's decision that could make a different decision debatable. Like in my case where the VA has some shreds of notes and hospital records vs a complete medical report from my doctor on their own VA form that completely discusses my disability, its origins, the impact on my employability, dx, prognosis, nexus etc and social and occupational adjustment. The VA says it is still debatable that I got a 10% rating while excluding my doctor's report that said I was 100% disabled and had total impairment in social and occupational adjustment due to psychosis. The VA said I had slight impairment and my doctor says I have complete impairment in all areas. The VA says it is not undebatable that 10% was correct rating. I never got appeal rights and all that jazz back in 1973. They throw it in my face that I could have appealed this decision if I did not like it. I did not even know that I could and I was pretty much living on skid row and don't even remember events until I looked in my C-File and got that sinking feeling of hate that I feel for the way the VA treated me back in the day.

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BigRed stated:

“We just found a form that the adjudication officer sent to the VA hospital that he was at requesting his records. 20 days later they denied the claim....clearly not enough time for the VA hosptial to send the records. They sent them about 5 months later after it was already denied. They never informed the veteran of that. “

They probably denied saying the claim was “not well grounded.”...the previous VCAA mantra that VA used to deny many claims in those days.

The opinion says no service connection found and there is no evidence of the condition.

That could certainly be the basis for a regular CUE claim, citing 38 CFR 4.6, filed against that older decision.

How do you know VA got the records 5 months later?

It's time stamped 5 months later, after they denied the claim already. I had the VA even confirm the date b/c it was difficult to even read.

I had a similiar situation regarding my recent CUE Yourself Request.

It involved my husband's SSA records and in my Nehmer decision I was quite shocked to learn that VA received those records until about 6 weeks before my husband died although they had the authorization forms for over a year by then.

Is it possible that this veteran was hospitalized while still AD in the Military in the 1970s?

What does AD mean? In his service records I do see two doctors notes that state he was complaining about nausea, and I also see a notation (if I am deciphering it correctly) of chronic GI. He also told me he went to the infermary on base for earaches/infections but the SMR don't seem to contain anything about that. I am not sure if we have his complete SMR, how can we make sure of that? We have his cfile and I have the SMRs that were in his Cfile.

Odd question I know but possible......

Does he have his complete SMRs?

I don't know, again, the SMRs were in his Cfile. Knowing the VA, probably not though.

I commend you on what you found, as to the fact that the VA did not have the hospital records when they denied the older claim.

It is amazing what value having a C file copy can be and then carefully going over everything in the C file.

Actually it wasn't in his Cfile. It was in his medical records that were in Missouri.The VA never obtained them. He was the one who called over there and got someone to look for him and sent it to us. Crazy right?

Did the VA, when they awarded the 30% for PTSD ( called a nervous condition in those earlier days) indicate anything at all in that decision or the subsequent 70% decisions as to the older hospital records?

No I keep saying that to the appeals coach and the director (he is assisting us in locating records, etc) They never addressed in any decision those 2 hospital summaries. His first medical C&P referred to them, but the rating officer did not.

Has the veteran, since, obtained those older VA med recs?

Yes, they are not all there, but we have some records, about 10 pages. He was in the hospital for 2 months so there were definitely more but that's all they have. We just found them in Neosho, MO.

When they awarded the 70% did they consider him for TDIU or was he employed ?

Yes they did, he did not know they were rating him on that when he went to the exam. He was not working he retired a few months before. He retired under stress though and stated that to the medical doctor at his C&P exam but they used other things against him and didn't mention any of his statments about how he was stressed and having crying episodes right before he retired.

Can you scan and attach the 70% decision, with the vet's permission here? If so , cover all identifying stuff.

The recent decision might not have a CUE basis but that older 1970s decision, if it makes no reference to the VA hospitalization records, in my opinion, does.

I agree, I think so too.

In the NOD for the recent decision, if I were you, I would NOD the EDD with the same argument you raised here as to VA not having the older med recs.

The Veteran did NOD but didn't go into specifics. I only recently starting helping him, I am going to send a more detailed letter this week with all our evidence and arguments.

You could make a CUE yourself request too on the same basis, to see what VA says on that.

Obviously he had a proven stressor for the SC awards, but I wonder if the stressor was, in fact, those older hospital records, indicating maybe VA has them but never acknowledged them to the veteran. ( hoping he would not challenge the EED)

When I had little NOD time left on my last CUE yourself request,I did file a NOD, asking the VA to address the CUE request first.

I also found the regs for a NOD extension time frame and even asked for the extension for good cause, and if not granted, then VA should consider the NOD as timely filed.

My point was two fold..... the NOD extension reg isnt challenged or used much and it has no definition of what VA considers good cause.

Good point, thank you!

I dont expect the extension and told VA I dont need it if they properly resolve the CUE request.

I did this to see how VA handles these NOD extension requests, and the other reason is that I set this up for a possible BVA decision on the initial request that they CUE the decision.

Although the regulations are the same at the BVA and the VAROs, BVA lawyers have far more expertise then the VAROs in proper interpretations of those regs.

A BVA denial I got many many years ago (I had just won that claim at the RO under a different basis so that claim was moot anyhow) contained a caveat specific to my situation.

I used a copy of the BVA caveat in 2009 to get VA to pay me my FTCA offset.

I sent as well the specific regulations that in my case award the refund of the offset.I know there is no other documented situation like mine was, but still I felt the actual regulations as well as the BVA decision, with the caveat hghlighted, would promptly bring the refund.

I was wrong and had to get the OGC to send the VARO the same regs and BVA statement before they would pay me.

After OGC ordered the refund, the offset refund came ,but that was at least 8 months after the award.

My point is the BVA (and of course the OGC) clearly understood the regulations that applied to my claim and ,since they are lawyers, they are willing and quite able at the BVA, to properly interpret 38 CFR far better, in many cases, then a VARO rater is.

I sure would fight for a better EED for this vet.

Thank you for helping him!

I have been happy to help!! He's a great guy and the more I find out, the VA really is just so messed up it's such an injustice. I really feel for the Veterans that have severe PTSD, like the homeless. They really have no one helping them, it's so sad. Thank you so much for your input!!!

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The lawyers at CAVC said that before 1992 the VA did not have to list all the evidence they had so you cannot prove they did not consider every bit of evidence before them or even know what was before them. Also, when you can produce evidence the VA did not consider that was in their possession for you to win a CUE there must be no evidence in VA's decision that could make a different decision debatable. Like in my case where the VA has some shreds of notes and hospital records vs a complete medical report from my doctor on their own VA form that completely discusses my disability, its origins, the impact on my employability, dx, prognosis, nexus etc and social and occupational adjustment. The VA says it is still debatable that I got a 10% rating while excluding my doctor's report that said I was 100% disabled and had total impairment in social and occupational adjustment due to psychosis. The VA said I had slight impairment and my doctor says I have complete impairment in all areas. The VA says it is not undebatable that 10% was correct rating. I never got appeal rights and all that jazz back in 1973. They throw it in my face that I could have appealed this decision if I did not like it. I did not even know that I could and I was pretty much living on skid row and don't even remember events until I looked in my C-File and got that sinking feeling of hate that I feel for the way the VA treated me back in the day.

Geez that is terrible John! Do you still have an appeal going? I"m so sorry all that happened to you! Re: the evidence, well apparently they did not even receive the 2 hospital discharge summaries until 5 months later after the decision was made. Basically, the veteran was hospitalized, he filled out an application for benefits, the AO got the app, sent a request form to the hosptial for the records, made a decision 20 days later (the veteran was still in the hospital), 5 months later the 2 hospital summaries were received. They never did anything with those records. They didn't reopen the claim, they didn't notify the veteran, they just put it in his cfile and then ignored it. When he went in 2011 to get his 1st c&P exam, they ignored it in the evidence, didn't even mention or list them even though it was in the cfile and the doctor talked about it in his report.

I just got a letter today saying they are woking on his appeal for eed and for us to send any additional evidence. So I will be sending out my letter back this week along with all the evidence we gathered and I will formulate my arguments. Thanks for all the input! If there is anything anyone wants to add, please let me know.

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I have an appeal that will probably end up at federal court. The CAVC is whipping out decisions and I don't know how they do it. I see decisions my Judge Hagel made within the last 5 months that were assigned to him after my case was assigned to him. If you have a claim you believe in and can get a lawyer to believe in it then we must be prepared to go all the way if we live that long.

John

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I love the 'consideration of evidence' given by VA.

On the 6th of this month, exactly 18 years and 11 months to the day after I got out of the Marines (and my claim was filed) I received my BVA decision denying a EED (raising my currently 20% SC right knee from 0% for 1994-2006). The 'judge' said that evidence was considered properly back then and that I had been rated based on my SMR's ('failure to show for exam' because of a post office issue with the notice back in 1994). He, like the rater in 1994, focused on one sentence from my discharge exam (done 3 months before my discharge) where the Corpsman wrote 'says knee isn't a problem right now' (which I did say as I ignorantly didn't want to take a chance on a medical hold), ignoring years worth of treatment. He did at least mention that I had treatment for the knee after the final physical, but totally dismissed it as a one time occurance. Chrondomalacia, patella femoral syndrome, probably 2-3 other diagnoses in my SMR and a statement from a doc in the middle of my 6 year enlistment saying right in my records that I had a problem for the 2 previous years but it 'wasn't severe enough to rate a medical board so unfortunately nothing can be done' (i.e. suck it up Marine, which I did, turns out I had torn cartilage since 1989 and have had 3 surgeries for it since 2006 when an MRI finally found it). I honestly think most VA employees think unless you have been shot or blown up you can't have an injury and they all have no real working knowledge of just how physically demanding being in one of the combat arms generally is (no offense to those other MOS's) nor the 'suck it up' mentality that permeates all ranks. Were I to have kids and they joined I would tell them again and again to keep as complete of a journal as possible of every single time they so much as pulled a muscle, treated by medical personnel or not, just to show that the average enlisted person has dozens of injuries over the course of even a regular 4 year enlistment and to submit it as evidence. Even if it is one sentence per incident with the date and injury (pulled left hamstring doing PT at Camp Pendleton, 6/14/13, etc.) having a real, handwritten personal record vs a SMR for a worst case situation like mine where SMR's are the only thing they use would be pretty hard for VA to ignore. Not that they wouldn't.

The thing that really got me was the condescending wording of the entire opinion. Had I known back in 2006 what this site has taught me I would say I was a 3 to 1 lock for that EED, but bad advice from 'service reps' and I lose. I considered a CUE but was advised against it by my rep and a DRO (informal hearing so no record of it). C'est la vie I guess but thank you Berta and everyone here for always fighting the good fight. The VA will never see the Vet as deserving and work as advocates for our claims, they see us all as leaches, like we are taking money out of their own pockets instead of receiving the compensation we rate by law.

Sorry if that is kinda off topic all.

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bumping it up so I can find it faster......

I am preparing a Go Cue Yourself claim for a vet in our TDIU forum and although it is almost finished, I want to make sure I leave no stone uncovered.

It is a very easy claim to prepare but the legal citations take time and they are the icing on the cake.Yum Yum

I got MY PC upgraded recently and although this claim is on my PC somewhere , I am here more then in my doc files.

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Thank you Berta, for answering my question too. "BVA CUEs, If a claimant feels the BVA made a CUE,they have to file a CUE Motion on that with the BVA ... page 14:" . I would have never found that with out your posting.

April 23rd, I won my BVA case, " Benefit granted in fullI", however, I found 2 CUEs on my BVA decision. I am waiting for the award letter to see if I should go forward with a BVA CUE request, if I am not satisfied with the total outcome.
After 45 years of distraction etc, I am seeking closure from this whole VA mess. However, If need be, I will press on.
You are truly inspiring, Berta. Your years of service to all of us is priceless.
My most positive thoughts are with you this Memorial Day, and always.

Kind regards,

C.B.

Edited by Commander Bob
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Thank YOU!!!!!! Commander Bob.

BVA does commit CUE errors......but not as many, in my opinion, as the ROs do.

And they seem more willing to deal with a CUE challenge than the ROs...because they are lawyers and dont like to make legal errors that the court could possibly catch.

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Thanks Berta. Copying the template now.

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bumping IT Up

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On Monday, January 21, 2013 at 2:39 PM, Berta said:

@Berta,

great informational post! much appreciation for sharing this with us all. i had never heard of "VA cue'ing itself" with regard to your point of reference. i knew of the CUE thing for ignoring clear cut medical evidence, things like that. as you know the lowball issue rang on my front door so-to-speak this year. obviously a great many vets get particle-beamed with this VA weapon, the "clear-cut cue lowball".

i'm sure my attorney knows of these things but your post helps us veterans without such knowledge to at least bring it up in conversation with our legal rep just in case, and for the vets that do their own filing.

and too, can empathize with your waiting for months "taking-5" for another battle with VA.  i can barely open a letter from VA without the nervous system getting tripped up, all i need to say about that, you & others know that deal. part of the price for dealing with VA.

as @broncovet mentioned, indeed there needs to be a way for vets to "resolve an erroneous denial/lowball" without years of waiting. in my particular case, lowball, and not even addressing some issues raised by attorney.

 

 

 

 

 

 

 

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Autumn, I am sure your attorney does Not know about this tactic....Or unless they are the Nehmer lawyer I dealt with who was very surprised this tactic worked for me.

Or Unless they read hadit.

There is no regulation for it. I won  that above claim earlier this year. Part of it is still in appeals however, But the CUE claim above succeeded.

And two more Go Cue Yourself claims I filed since then also succeed, I am sure all those claims are posted here somewhere.

It is the same premise as a CUE claim filed on an unappealed, decision. The decision ,as in my case, can be an award, containing CUE ,and not even a denial...

If most reps and lawyers understood this basic tactic, it could help reduce the backlog.

It makes sense not to allow VA to get away with a legal error , to a claimants detriment, in a decision that might never need a NOD filed, if someone acts on the legal error with them ASAP.

The above Nehmer decision (2012) resulted from 3 CUEs I filed in 1998 on an award letter.

At that time my former rep said not to NOD the award because "1151s are different from regular claims".

He was wrong but now I realize I could have asked them to CUE themselves on the decision the day after I got it in 1998.

It is like battle,

if the enemy retreats and leaves some of their weapons and other material behind, the weapons and stuff then can be confiscated and used against them in the next battle. That happened a lot in the Civil war....actually probably in every War.

Regulations are VA's paper weapons, but we can use them against VA decisions too.

 

 

 

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Is there a cutoff or timeframe on filing a cue claim, or can a Veteran see errors in his claims today that he did not know was a cue years ago, and file a cue today for those errors?

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Vets have won mega retro by recognizing CUEs in very old decisions.

Some of those awards are searchable here in the CUE forum.

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Berta, If I am not mistaken CUE don't have an expiration date correct, however, the alleged CUE must follow the laws and regulations at the time of the alleged CUE correct? Or am I mistaken?

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On Saturday, February 27, 2016 at 11:34 AM, Berta said:

Autumn, I am sure your attorney does Not know about this tactic....Or unless they are the Nehmer lawyer I dealt with who was very surprised this tactic worked for me.

Or Unless they read hadit.

There is no regulation for it. I won  that above claim earlier this year. Part of it is still in appeals however, But the CUE claim above succeeded.

And two more Go Cue Yourself claims I filed since then also succeed, I am sure all those claims are posted here somewhere.

It is the same premise as a CUE claim filed on an unappealed, decision. The decision ,as in my case, can be an award, containing CUE ,and not even a denial...

If most reps and lawyers understood this basic tactic, it could help reduce the backlog.

It makes sense not to allow VA to get away with a legal error , to a claimants detriment, in a decision that might never need a NOD filed, if someone acts on the legal error with them ASAP.

The above Nehmer decision (2012) resulted from 3 CUEs I filed in 1998 on an award letter.

At that time my former rep said not to NOD the award because "1151s are different from regular claims".

He was wrong but now I realize I could have asked them to CUE themselves on the decision the day after I got it in 1998.

It is like battle,

if the enemy retreats and leaves some of their weapons and other material behind, the weapons and stuff then can be confiscated and used against them in the next battle. That happened a lot in the Civil war....actually probably in every War.

Regulations are VA's paper weapons, but we can use them against VA decisions too.

 

 

 

he may not know of this. i will suggest he view this thread. there may be a weapon or two he can use with the appeal regarding lowball CUE. this particular recent CUE award was via NOD. if that makes any difference.

 

 

 

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 an attorney will not address this issue because it

doesn't exist a cue is final decision Sorry I respond to this

good luck. What ever works that's all mater

 

Edited by RUREADY

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Yes to both.

1.  Correct.   There is no time limit to file a CUE.  

2.  Also correct.  You can not file a CUE on a decision that is not final, such as if its awaiting a Board Remand or pending adjutication.      

3.  However, Berta has done well "Asking VA to CUE themselves" on decisions that are NOT a year old, that is recent decisions, but all agree you should ALSO file a NOD within the year unless you get a favorable result asking VA to cue themselves.  

Edited by broncovet
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