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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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Shoot, bubba. You want to come work for me over at asknod? You have more legal savvy than twenty five guys on here. You honestly must have read books to learn this. It isn't something you just pick up as you go along. Miracle of miracles, too. Discovery. You actually have your c-file. Outstanding work. CUE is one of the hardest concepts to grasp- even more so than SMC. I enjoy turning it around on them like Berta. My last one was a daisy in my Writ. The Presumption of Administrative Regularity is assumed right up until you prove it isn't.

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Yeah, ASKNOD Is RIGHT!!! I knew he would have a great reply to you.

"GAFs between 20-40, with 7 inpatient 5150s."

GEEEZ ....that got my husband 100% PTSD, with only 2 Hospitalizations. They have to consider the GAF ,even though they dont use it anymore, because it has been established long ago in your med recs.

"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."

Superb...constructive possession....

"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."

HOLY COW!

You got them ( I think I assumed at first this was a PTSD claim, but it is for PTSD with Bi Polar...)

I am thinking the NSC rating did not even consider the PTSD and hope that wont be a problem....obviously it shouldnt be. and there are many ways to skin a cat under CUE.

I agree with Alex that you sure did your homework on this.

To me finding a CUE is like suddenly being served a lobster dinner.....

A little messy to eat sometimes, but the results of digging into that shell can end up being very satisfying.

I think you have a lot more then one lobster dinner here....this is a delicious CUE claim!

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Thank you asknod, berta and Navy04.

I have been reading a lot. Many BVA decisions and CAVC. Asknod got the ball rolling during my asthma appeal for an eed. The topic came up about presumption of regularity and I've been studying since.

I hope I've got them berta. I think where they'll fight is the original claim is for "bipolar" 2003 claim. The award claim in 2012 is for PTSD with bipolar disorder. They may argue entitlement didn't arise until 2012 when I was diagnosed with PTSD at my local CBOC. Even though I carried a diagnosis of bipolar disorder since 2002, it wasn't PTSD. Service connection was finally granted in 2012 because I proved my stressor and therefore the bipolar was also connected. I had no in service treatment notes, just a lot of psych notes within 6 months after discharge.

Does that make sense?

Edited by SigBnSoldier
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"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."

Yeah, I think that is a good idea....I had 2 CUEs it took them over 8 years to award, and a few more recently that took mere weeks.

On my pending CUE they denied and then reversed right away because I raised a ruckus, The decision contained 4 CUEs.

The director apologized for 2 of them and then tried to get me to believe some wacky stuff by phone as to why I won 2 CUEs but they cant pay me....BS to that.

I am preparing a Writ of Mandamus. I dont care if the court denies it.

For 50 bucks filing fee, it will be more than worth it to attach my evidence from the VA itself, to all those I have to serve with the petition....The Court, the Secretary and the Buffalo VARO.

It all reveals how little knowledge they have of VA 101 and although the phone calls from my RO I could not tape legally here in NY, I did take notes on them and they certainly appear on my call box.

But my documented evidence from them will clearly move the court to do something.

Mandamus writs means you have to exhaust all other means of getting your issues squared away.

But an illegal decision means one cannot prepare a valid NOD. (although I filed a timely NOD, with a Request for extention for good cause) after I filed the CUE.

I will tell the court that I cannot exhaust other means to get my issue resolved if I am forced to deal with RO employees who violate 38 CFR 4.6 and who also cannot read.

I cannot exhaust those appellate options when the RO refuses to give me a copy of the recent posthumous C & P exam they did (although they reversed the denial fast) because I have a right to know the qualifications of whoever did this exam as it appears it was done by a non medical employee.

oh heck I am rambling........................I need to work on the writ today. I am stcuk withoout a printer and my new PC....I told my PC man I was not in a hurry last month, and now I find I need the PC and printer more than ever....

It will contain as evidence, those two recent denials, and subsequent awards, all of of emails to and from the Under Secretary Ms. Hickey, and one to Secretary Bob and a copy of my past House VAC testimony on the same issue,and thr emails to and from the director I sent and received..

I am only asking the court to do one thing....to.order these incompetents at my RO to apply basic VA case law to my claim ( 38 CFR 4.6) and read my legal evidence for my main CUE ( a CUE I filed on a 2012 awarded CUE , that was still wrong.)

I am also asking the court for a precedent setting decision, to help others similarly situated.,when they provide VA with probative evidence that their RO chooses to completely ignore.,in violation of 38 CFR 4.6.

Also if I have to file an I-9 on this, my first statement will be, on the I-9, 'Thank God I am at the BVA. My VARO cannot read.'

One point I will make again.

In my case a VA Rep called me to verify the evidence they had. Instead of me telling him what I sent, I asked him to read back some of it and I knew he wasnt BSing me.

He asked if I had received the 5103 the director had sent....no I never got it so he sent me another one and on it I listed all the evidence I had sent to them (that he verified by phone they had)

They STILL ignored it on the main CUE claim.

They did finally use a VACO medical opinion to reverse the HBP 1151 denial...a separate issue from the main CUE.

In my last email to Hickey and the Sec I stated that VAROs have caused the backlog themselves ,in a great part, by pulling this stuff on other claimants.who need to appeal to the BVA before someone will actually read their evidence.

.

.

Edited by Berta
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Sal from LARO just called a few hours ago and asked if I'd like this considered as an appeal or a CUE. I told him the reason I sent it in in both ways was because the RO probably would refuse my 21-0958 as untimely. So, I sent one anyway, as well as a fully developed CUE claim.

Then he said I'd probably hear from them about this in about 6 months.

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Gee...That is better than 6 years.. :wacko:

.but still..I wonder how they will handle it...as to what will be decided first.

BUT good for you, you covered yourself either way.

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