Request for EED CUE Review

[Gastone]

I was about to NOD (DRO Review) my 12/2015 Award for an EED.

I called my RO VSO on a different matter but lucked out and got the Rep (Former DRO) that attended my 06/14 DRO Hearing. After discussing the VA Walk-in C-File Viewing Policy, which was the reason for the call, we moved on to the NOD I was about to file for the EED. He recommended filing a Request for an EED CUE Review, saying it would be faster than the DRO Review.

I figured, give it a try, still had till 4/17 based on Award Letter Date, to file the NOD for the DRO Review. Faxed him the 12 EED supporting Pages from my MHV Clinician Notes. He filed the Request 05/13/16, E-Ben showed it the following week, 06/04 it had moved to pending Decision with expected completion dates 06/15 - 07/15.

No matter the Decision, maybe there is something to the VA Request for Review, at least for CUEs. And I still have my NOD DRO Review, Locked & Cocked.

Oh ya, my VSO-Rep confirmed the walk-in RO C-File viewing policy. He said that all Det RO C-Files had been digitized, for our Viewing Enjoyment, no more piles of paper to turn, page by page.

Semper Fi

 

 

 

 

 

 

 

[Berta]

I think Asknod's post is very clear,Buck.

The VA is not inclined to "review" anything unless the claimant raises a good legal basis ( CUE or 38 CFR 3.156)

Alex is also correct that a CUE challenge is not a "claim"  and we and even the vet reps just call it that from habit.

I love the BVA's definition of CUE...it is a Frontal Attack on a past VA decision.

A CUE has to be clearly defined,legally,  for the VA and no one should even think about filing one unless they have a copy of the whole past decision they are cueing.

.

"What would the VA do? go back and re read all his medical records" no,not all...... maybe just the ones that were established at time of alleged CUE. They would go to a past rating sheet first.  "and would the Veteran be taking a chance on possibly getting a proposal to reduce?" I think that is always a chance claimant takes.But the bar is high for VA to do that .

My SMC CUE explained here in our CUE forum is an example of what I mean.There was CUE in the rating for a stroke my husband had.(1998 decision)

The established medical evidence they had warranted 100% P & T under 1151 for the stroke.CUE # 1

They violated consideration of the SMC mandate as well, CUE # 2, and another legal error occurred based on the rating sheet itself.# 3

And they also 'forgot' any rating whatsoever for my husband's IHD but that was a different CUE I sent to them. They cant handle too much at once. 4 CUEs on the same decision.They gave him posthumously the proper EED, for the IHD and also the Stroke.

In my daughter's Chapter 35  NOD she said I raised CUE as well, because the regulations they broke were right on her Chap 35 application and I referred them to that and to her DD 214.

They fixed that in a heartbeat. 3 weeks after she sent them the NOD via priority mail she got the proper award letter.

This was VA Edu Dept and they are faster than a regular claim at the RO.And sometimes VA Edu dept is an oxymoron.

 

 

 

 

[Buck52]

 Thank You Ms berta...I see what your saying and asknod.

Just for conversation on this subject.

 Most veterans are not Attorney's and the VA knows this...and I can only imagine  a lot get the screws put to them pretty bad.  not knowing the VA Law and how to work their claims....but hine sights 20/20

 its simple fact  that when a veteran learns that they Ignored his evidence for what ever reason and then rated the veteran at the same time, but failed on the years  of EED  & ( a year not filing the NOD Runs out I can understand  that..

 but didn't Asknod mention a CUE is not a claim? but maybe an EED IS?

I was under the intention of CFR 38: 3.400 (b) that states '' Unless specifically provide  on bases of facts found''

a veteran could go back and prove his CUE on the part of the EED?

 Anyway years later veteran finds out they screwed him out of a few years retro....the veteran don't have a right to Ask VA to correct what they them self screwed up back then?  

 Could it be Because he never filed an NOD  for the EED.?

But what I mean is the Veteran found out about it to late, even tho he was in his NOD and won his claim ..so after that first year the claim closed out  and the Veteran is out of Luck on letting the VA know that committed a CUE back then?

even if the Veteran has the correct records showing what they did and it absolutely was  a CUE back then(2002)...the veteran just never caught until years later.

to little to late I suppose!

Edited June 11, 2016 by Buck52

[Buck52]

I wanted to apologize to the OP for clouding up his post...sorry sir.

Ms berta maybe you guys can do a blog talk radio show on CUE's and when the Veteran finds a CUE Years later  the difference between a CUE Claim vs  Regular claim or claim for increase and and Claim for EED.

ALL is understandable about the NOD time line.

but those old CUE'S sure are hard to understand  let alone file on one....I'd never file CUE unless I was 100%sure I'd have a ''CHANCE'' at winning it.

........Buck

[FormerMember]

Andyman73 says:

I wrote that this needs to be my SCD date due to same SMR evidence used to make SC was used back in 2006. The only difference was that 2006 claim was never adjucated.

Andy, remember a claim unadjudicated remains a claim until it can be ascertained that a decision has been reached. I'm not the past master of it but I'm close. VA had to go back 20 years and pay it at 100%. They were too lazy to do a Fenderson staged rating. Thirteen months later I did the same thing with my AO disease.

When VA "neglects" to finish a rating, for whatever reason, the claim sits there awaiting action. Sometimes it is deferred and forgotten for a decade or two like mine. Sometimes it is viewed as being "deemed denied" because it was secondary to a denied primary claim. If you fought for years on the primary claim and finally won on appeal, VA is known to "disremember" you also filed the secondary. They are loathe to go back and award it from the original filing date. It takes finesse to carry it to appeal and win it to avoid VA's propensity to offer up all manner of silly arguments about how you should have know it was denied-even if they forgot to tell you. 

You need not attack this as a CUE because that is worse than digging to China from Nebraska. If they failed to adjudicate it, you treat it as a regular claim unanswered. I like to spring it on them. First, you win it. Then you point out it wasn't a reopen, but rather the pursuit of an original claim from 2006. VA will fight like the devil to toss it. You'll have to go to appeal and it may take a while but the reward is well worth it.

A claim remands pending until it can be verified by some judicial motion that it was either awarded or denied. That is boilerplate VA law. They tend to ignore it (and you) in hopes you'll get bored and go away. This precisely why you see an 85% denial rate that shrinks to 61% at the BVA and then reverses percentages and is awarded 65% of the time at the CAVC. VA simply doesn't operate within the law and arbitrarily denies in hopes you'll give up. VA appears to be doing this to me on my ILP greenhouse. Monday morning they get their wakeup call. I'm filing a new Extraordinary Writ of Mandamus to compel them to build it for me RFN. They have delayed five years on appeal and now another 9 months to "study" it. Last week, they informed me they are now in the next stage of letting out bids for the general contractor who will supervise it. Next, they take bids for the physical structure. No dice. It doesn't take three years to build a 24 X 48 greenhouse. 

If your 2006 filing for a disease/injury has never been addressed, I suggest you get on it. No attorney or agent can help you until you have that denial in your back pocket. It'll be a daisy of a dustup but I think you'll prevail. After all, you have the power of hadit and asknod.org behind you.

[broncovet]

Alex, yes, the problem is getting them to adjuticate a 20 year old unadjuticated claim.  VA has shown they can disremember this permanently.  

If the Vet "files a new claim", you can rest assured it wont go back to the old date, if awarded at all.  In my case, they saw it coming and just denied it instead.   I just hate that we have to do this in stages.   We already waited 10 years for them to adjuticate, so now we file a new claim.  We finaly get it adjuticated and now its back to the drawing board for CUE.  With this kind of delay process you get 20 year old claims.  

Many of us wont be alive 20 years from now.  

[FormerMember]

R/T.