ptsd Jurisdiction Of C&ue

[RodnAnn]

My Vietnam veteran husband is at 50% SC for PTSD & has been since 2008. 1990 was the first time he filed a claim for PTSD & he let that claim become final. Again in 2002 he filed a claim for PTSD & when he was denied he did not appeal and that claim became final. At the time of the 2 claims mentioned we lived in Alabama. So these claims were decided in Montgomery, AL. After moving to Mississippi, he got his claim re-opened in 2008 by submitting new and material evidence. That claim was decided in Jackson, MS. In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002. At the same time he had an appeal at the BVA for an increase to 100% for the PTSD. When they ruled on the appeal in November of 2013 they mentioned the C&UE:

" the issue of whether clear and unmistakable error was committed in the prior final rating decisions of November 1990 and November 2002 has been raised by the record , but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action."

My question is "Has anyone experienced a similar situation and can anyone give us any insight to where the claim for C&UE ended up?" We don't know where to go for answers and we really don't understand what this statement means. Is the claim for C&UE at the regional office in AL or MS?

[Berta]

I am confused, why did you send VA the 21-0845 form?

To get a copy of his C file????

Edited April 4, 2014 by Berta

[RodnAnn]

Berta,

The reason for the 21-0845 form was so that "Peggy" would give me any info they had.

Here is the actual CUE document for you to read.

CUE.pdf

[Berta]

The 2002 denial said " No authentic stressor of record"......SAY WHAT?

The 2008 award states they conceded the stressor due to the PH.

In my opinion you are CORRECT as to the CUE and his EED should be from the date of filing the claim that resulted in the 2002 denial.

it is always possible that the medical evidence at time of that decision might warrant only 10% rating and not the 30 % rating or higher but VA would have to do a Fenderson rating on the level of his PTSD from 2002. a staged rating......


You prepared the 21- 4138 very well.

The only thing I would have done differently was to state in CAPS at the top-

THIS IS A CLAIM OF CLEAR AND UNMISTAKABLE ERROR UNDER AUSPICES of 38 USC 5109A

And I would have added that the obvious and erroneous past legal error caused a loss of proper compensation, and thus the error manifested an altered outcome,detriment to a proper monetary award..

I would raise 38 CFR 4.6 as the legal error they made, because they did not properly consider the veteran's DD 214 ,revealing his receipt of the Purple Heart.
I am not sure if 38 CFR 3.156 should be raised but others will chime in on that. The vet in the BVA award raised both theories.

I assume the VA did have all available records, but failed to consider the most probative evidence (the DD 214)

However there are also multiple other citations you could use as well, such as in BVA decisions on CUE and CAVC decisions....this BVA case probably contains some of them.

This is a fabulous CUE award linked below ...similar to your situation .....

However the 38 USC 5109A I cited is different here because this was a CUE in a BVA decision.( 38 C.F.R. § 20.1403(b).

Your CUE was in a VARO decision I believe,

so the CUE must be filed with the VARO which committed the CUE..

(22 Years off Retro!!!)


"There was CUE in the June 23, 2004, Board decision; that
decision is amended to the extent that an earlier effective
date of October 18, 1982, is granted for the award of
service connection for PTSD."

http://www.va.gov/vetapp10/files1/1004548.txt

[Berta]

I forgot to add I always sent the VARO a copy of the actual decision and highlighted the CUE part, and listed it as evidence enclosed.

But in my pending CUE I just quoted the specific statement that contained the CUE, and sent them the first page and then the additional page with the CUE in it , as the decision was very lengthy.

I also listed the probative medical evidence established in the veteran's lifetime with the VA, that warranted a revision under CUE, for a proper EED, involving about 15 more months of retro 100% compensation......the fact that I even got the partial award ( 6 months at 100% and also SMC retro) came from a prior CUE I filed.

So they granted the original CUE and then committed another CUE in the award letter.....causing an additional manifested altered outcome.

....

[RodnAnn]

Berta,

Thank you so much for your info! I believe that we do still have hope to get this awarded. We have been fighting a long time to see some results from all this. My husband is almost 70 years old and still having to do battle with the VA!

[Berta]

We have some great CUE awards listed in this forum.

I learned as much from denied CUE claims filed at the BVA, as I did from reading awarded CUE claims.

I think the RO deliberately stalled on my 2004 CUE claim ( I called them on 3 separate legal errors in a 1998 decision)

that they knew it would mean a larger five figure award and they stalled on it.

I made the mistake of asking them to reconsider their initial denial, and some responses I got seemed like they would reconsider it. But luckily I filed the NOD in time and in late 2011 it was set for a BVA transfer but I got the Nehmer people to consider it (because it was filed prior to my 2010 AO IHD claim) and they awarded it.

You simplified the issue on the 21- 4138.

I think that is the best thing anyone can do with a CUE...make it simple ,state the legal error(s) they made, say the comp would have been established or rated higher based on medical evidence they had at time of the alleged CUEd decision and ,maybe I forgot above, you can tell them their subsequent service connected decision of ( date) ,for the same disability, reveals that they obviously erred in the past denial, due to the subsequent award.

Gee I am not taking my own advise-------adding stuff the CUE claim doesnt need....this part...

"you can tell them their subsequent service connected decision of ( date) ,for the same disability, reveals that they obviously erred in the past denial, due to the subsequent award."

The VA will see that fact at first glance(I hope) because I think a ten year old would get this CUE , but then again ...

we are dealing with the VA....