CUE and Duty to Assist violations

[Berta]

I mentioned this before but just to clarify.....

If you find that VA has ignored your probative evidence, that is a violation of 38 CFR 4.6.

If they send you a 5103 waiver and you again list and enclose the evidence with the 5103 waiver,because you probably sent it in with your claim anyhow but just in case, and even if a RO employee verifies that have that evidence,  and yet they still ignore it, that is a CUE, under 38 CFR 4.6.

You cannot file CUE on the actual Duty to Assist policy.You can file CUE on their Violation of that policy,if you can apply 38 CFR 4.6 to your CUE.

I just filed 4 CUEs with the Director via email. And am still awaiting IRIS complaint response on the whereabouts of my timely I-9....a separate issue.

I cannot file the Motion to Advance on the BVA Docket until they find my timely filed appeal and reinstate it.

CUEs on 38 CFR 4.6 violations are not difficult to file.And should be filed ASAP.

Otherwise they will probably cause a remand.

 

 

 

[FormerMember]

I love it. A new can opener for old claims. I'll have to put 4.6 in my toolbag along with 3.103(c)(2).

You're going to love this one, Berta. I have an endless supply of 156(c) ammo for a 1970 claim. VA never went back to St. Louis for the NPRC stuff after AmVets filed in 70. All the STRs from arrival at 312th Air Evac at Chu Lai, the debridements and eye surgery from 95th Air Evac. Hospital at Da Nang the next day and a month's worth of Camp Zama STRs have been sitting there for 46 years. VA only got what he walked out with for an initial rating at separation. The Asst. RO director called me Wednesday to apologize for not being able to get a DRO hearing date before the 22nd. I told him if they deny me and issue an SOC, I'm going to keep dribbling in more 156(c) evidence in SSOC rebuttals until the cows come home. He did promise me the DRO will begin the decision making process the next day after the hearing. Either they realize they stepped on their necktie or they plan on going through a big Dog and Pony show denial. My VLJ friends all think they'll try to toss us a 30-40% bone and pray we were born last night.

Like the idiots they are, they separated the CUEs from the increase claim and gave me a separate CUE denial. 12 muscles groups were rated for scars instead of muscle damage. Maybe someone read my NOD for the CUE- it was 26 pages long. If the line at the BVA is 4 years, why wait? Always keep a hand grenade or two for the DRO to SSOC with whenever possible. Check out the pepper spot tattooing from the 60mm mortar in this picture. That's just his arm. It runs from head to knee on the right side including the back. He has more retained metal than any 11 Bravo I've ever met and lived through it. They gave him 10% in 70 for a scar. With 3.103(c)(2), you can request a VA physician to be present for a visual-only inspection of the claimant. Boy howdy are they going to get an eyeful. I told Butch to wear clean underwear. I hope the DRO isn't a woman of modesty because he's going to drop trou for the doctor. 7 MGs @40%, 2@ 30%, tinnitus, PTSD, TBI, headaches, blurred vision, otitis media and a spouse and four dependents since 1970.  

Check out his bunker the 60mm mortar hit.It's the double-berth one on the right of the picture. It was totally destroyed in the explosion. The culvert shielded him and his buddy partially. This takes 'delay, deny until we die' to whole new level.

[Berta]

Sounds Delicious   Alex-

 

 “12 muscles groups were rated for scars instead of muscle damage.”

Oh No…shades of Myler V Derwinski!

As you well know:

https://asknod.org/2016/01/01/cova-myler-v-derwinski-retained-shell-fragments/

Myler is one of my most favorite COVA decisions and 38 CFR 4.6 is  my absolutely favorite regulation 

I just cued them again with it. They put both of my pending claims on a letter stating they had attached a 5103. I have the whole packet and never removed the staple ( photo to go with the CUE) because when I flipped through it there was no 5103 "enclosed".

Then they sent one when I raised a ruckus and the guy who sent me the packet called me (Same name and same initials in the alpha numeric on the letter) and said ,when they got my 5103, which they finally sent,that they could decide both claims very fast and I made him read me the evidence listed that I had listed and included with the 5103  which they had already received with one of the claims (a CUE specifically highlighting from his original letter what evidence went with what claim.They decided only one claim ,the HBP claim and I guess they s--t canned my evidence for the other claim because it never appeared in the evidence list on a denial that followed.

This is funny-they denied the other claim (1151 HBP) on March 3, 2015 and then awarded the same on April 2,2015 due to in their words " We received a request to re-open a previous claim on March 27, 2015.Based on a review of the evidence listed below, we have made the following decisions on your claim." HBP under 1151 10% EED  August 1992.

I didn't request a 're-open',  re -open my ass----I told them to CUE themselves on the March denial. I had only one piece of evidence for that claim and it was dynamite and they ignored it in March,in violation of 38 CFR 4.6.....

As Evidence they used my emails to their director but mentioned the medical evidence in the narrative.The emails contained the CUE and I think I filed XCUE via IRIS as well.   I love this crap. It will all be in my book.Every decision I ever got.VA Sec Shulkin and Potus will get the first copies maybe even before it gets published. Just think -I can prove they are not only incompetent with claims, but proven with medical care as well.(FTCA/1151) 

 

“They gave him 10% in 70 for a scar.” That is the shits.

I hope you and Butch break the VA bank.

And I always say NOTHING is impossible with the VA.