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Fully Developed Cue

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SigBnSoldier

Question

Submitted CUE to Los Angeles RO on 5/6/15.

Evidence included-

7/21/2004 VA Form 21-4138 stating I was homeless with no mailing address at the present time

10/21/2004 Denial Decision letter mailed to address I had told VA I no longer lived at.

01/19/2005 2nd mailing of denial decision letter sent to the same wrong address again. This time RO handwrote in "C/O New Directions" but sent the letter to the same wrong address.

08/31/2004 Social Work Progress Note from VAMC stating place, address and phone number of new address in Santa Barbara I could be located at

11/10/2004 VAMC Los Angeles inpatient progress note stating I was returning to Santa Barbara.

01/19/2005 VAMC Los Angeles discharge summery note stating I was again returning to Santa Barbara Rescue Mission.

21-4138 Stating VA failed to follow proper mailing procedures and did not provide me with appellate rights. That I later, in 2012 won service connection for PTSD with Bipolar Disorder, and that effective date of 4/13/2012 was clear and unmistakable error, as well as the other contentions of that 2003 claim remained appealable.

So folks, do you think I've rebutted the presumption of regularity with this CUE claim?

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https://www.uscourts.cavc.gov/documents/Crain_01-2076.pdf

There might be some citations in this decision to bolster the CUE claim.

"That I later, in 2012 won service connection for PTSD with Bipolar Disorder, and that effective date of 4/13/2012 was clear and unmistakable error, as well as the other contentions of that 2003 claim remained appealable. "

I am looking at this in another way......presumption of regularity might work ( tomorrow I will try to find something in M21-1MR but the VA might have satisfied it

s Duty to Assist, by trying twice to send uyou the decision...I am not sure at all on that...

"10/21/2004 Denial Decision letter mailed to address I had told VA I no longer lived at."

OK , even if they DID mail you the denial and you Did get it......if they had medical evidence in 2004 that you should have been service connected then, that would be a CUE on their denial , regardless of whether you got the denial or not....

Does that make sense to you???I commend you for considering CUE.

You could even file the CUE and raise many issues.

I had 2 denials recently, filed 4 CUEs against them right away over each denial and then they reversed those decisions...they still dont want to cough up the cash however, but they will.....

Sorry I have to leave my PC but tomorrow I will try to help more.

VA might have satisfied it's DTA by trying to send you the decision......

But if the decision was a bogus one, based on the evidence they had, that is a CUE ,regardless if they even actually mailed it.

I hope other Cuerinos here chime in.

Can you scan and attach the denial of 2004 here (cover C file number,Name, Address prior to scanning it.)

Nothing is Impossible with the VA.

What is your PTSD rating?

With 80% have you applied for TDIU or are you substantially employed?

.

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Rios v. Mansfield. The presumption of regularity of the mail. You clearly rebutted it with EOR from your file assuming all you stated above is documented. I've hit that one out of the park before for a gal down in Florida. If you didn't get it via the wrong address and you clearly provided the right one within the time limit (one year) to appeal, the claim remains open and is tolled only when you have been notified "officially". VA should have automatically dialed into that fact when you reopened and won in 2012. The problem is simple. It will cost them too much. Repair order is to fight you for ten years on appeal and throw another $100 K in salaries at it hoping you'll fold up the tent and go home with empty pockets. Win or Die.

When they do accede the win, they'll lowball you to about 30% all the way to the 100% in 2012. Hope you have a smokin' dx of bent brain going back to the earlier date and a GAF score in the basement.

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GAFs between 20-40, with 7 inpatient 5150s. Between 2003 and 2007 I was homeless and it's documented.

Yes, all the documents sent are from my claims file, date stamped by LARO.

They already pieced it out to me a bit, by DRO award of EED for asthma all the way back to 2 /2004 at 30%. It was a nice check, but that knowingly mailing to an address I didn't reside at and had informed them of just didn't sit right with me. Unfortunately I didn't include the bipolar contention on that NOD, only asthma, so I have to go the CUE route with it because it's been over a year since service connection was granted.

I'm thinking I'll skip the DRO this time though. Off to BVA and then I'm assuming it'll need to go CAVC, unless I get a fair VLJ.

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By the way, that address in Santa Barbara was entered into my VAMC records BEFORE the denial decision was issued, and AFTER I told them I didn't live at the address they mailed the decision to.

I also mentioned in the claim they had constructive possession of my address via VAMC records, which they failed to search when the first mailing was returned undeliverable.

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Hey asknod, I think they'd have a hard time lowballing when in the same denial they awarded bipolar non service connection pension, rating sheet says NSC 70%. Effective 11/20/2003.

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