FormerMember

The requirements for making a CUE insinuation are identical for VA as they are for you. That is a mighty steep mountain for them to climb. VA does this arbitrarily when they screw up with their records. You probably filed what was required and are blameless. However, you only have 60 days to pitch a bitch or VA can go ahead with the action. Here's where they screw up. They have to prove, just as you would, that the facts, as they were known, were not before the adjudicator and/or the law as it was written at the time was ignored or misinterpreted. If both or either one singly exists, VA then has to prove it would have manifestly changed the outcome of granting your IU and P&T. It appears no one is arguing the SMC K. As with most insinuations of CUE, the correct facts, as they were known, were probably not in front of the rater or this would never have happened. Where VA (and Vets) always lose is the 'manifestly different outcome' codicil. Unless they can prove you were employed within a year of the rating 'error' or in some way not entitled to the grant, the finding (IU and P&T) must stand. From reading your timeline, it appears the decision to grant your IU is over a year old. That means it is final and binding on both you and VA which is VAspeak for a done deal. To overturn it, they have a hard row to how. They are, however, allowed to throw the hand grenade and make you jump. 60 days from any notification letter is the suspense time limit to act. By objecting within this 60 days, you can abate the action by filing a NOD and proceeding to submit evidence that you submitted what they say you did not. They would never grant IU if you had not provided them with evidence of your eligibility. If you submitted the missing document through your VSO, they are legally required to keep a record (copy) before filing it with the VA. VA is precluded from taking the rating away from you until they prevail at the BVA and CAVC-but only if you appeal. If you fail to object, it will happen within six months of the letter. My advice is to contact a VA attorney pronto. This is light years past anything a VSO can comprehend legally. They'll fumble it and you'll lose. VA is fond of doing these things to reinforce the old VSO adage of 'don't rock the boat'. Your advocacy has nothing to do with this. The OIG routinely comes through VAROs and reviews old records to determine if VA raters are proficient. Considering their accuracy is in the mid-30 percentile, this should come as no surprise. VA can't find their ass with a methane detector. You will win but it will take time and energy to effect it. The good news is that they probably won't pull this stunt on you again and you'll live happily ever after.

Technically, no, unless you have deferred claims issues. You'd file the NOD on the denial that was decided and then be forced to file on the second one or batch if it's more than one. VA tends to bifurcate claims and make then stand alone ones. This becomes a big problem when you've filed secondaries and VA defers them or denies them outright. With SMC, the big problem for you is going to be the delay and not so much being prevented from getting it at all. VA has never done anything rapidly and loves to pretend ignorance or an inability to understand what you are asking for.

3.156(b) is probably what I would cite to based on error. If you have submitted any new and material evidence into the file after the original denial/ reduction/failure to grant, it requires a de novo review of the existing claim. The beginning of your claim with the obvious 60% bilateral rating should have set off the alarm bells. The OIG has been making the rounds this year looking for errors in adjudictions at local ROs. One of the most egregious errors they are committing is failure to award SMC S where it is due. Whether it's poor training or they are so completely dependent on the M21 Cray Computer to give them the right answer, they are getting it wrong more often than not. Relax. It's payable all the way back to when it was owed. Submit that info again and it will be sitting at the top of the .pdf c-file when they open it again. Seems like a huge waste of time to open a whole new claim when you already have one open. I've kept my original claim open since March 1994. It's back at the BVA again. Best of luck.

<<<CFR 3.105(a) states - ....... 'Previous determinations which are final and binding including decisions of service connection .....' 'will be accepted as correct in the absence of clear and unmistakable error' ......... Time to take a class in VA law. Final and binding means a legal finding which cannot be overturned without a determination of CUE. Final and binding occurs after the appeal period runs out with no action on your part. What we have is a disagreement on what constitutes CUE. I have no argument with Berta's description of it other than to say calling an error CUE during the appeals window following denial to be the wrong legal term. Sure, it's most definitely a "clear and unmistakeable error" but not one that is final and binding-yet. It is an error on the RVSR's part that, left uncorrected, will become final and binding forever without action on your part. Read Gilbert v Derwinski to further understand. Clear and unmistakable error is recognizable to anyone with half a brain It is described in Gilbert as something everyone can agree on. 3.105(e) says it explicitly. Learn legal terms and you will solve your own dilemma. As for filing the 526EZ to "fix" a CUE during an open claim, I strongly advise against it as it will confuse the hell out of the VA as to what you really do want. Veterans' problems with the new VBMS techniques are going to be a learning process. They are forcing many with no computer skills to go to VSOs and we know what that portends. J1VO.

Keep one thing in mind. If you have not received the proper rating and less than a year has passed, you file a NOD on a 21-0958 and say "Yoohoo? You made a little mistake. I'm entitled to SMC S and here's why." A true CUE claim is becoming more and more confused on this site due to misinformation. If a claim is alive and still viable and an error occurs on a rating, it technically is not CUE until they close out the claim/appeal for lack of action. If you are still actively appealing the claim, CUE cannot exist. Error, yes but not CUE. CUE is a Motion for Revision of an old, closed claim you wish to contest after you have no legal options left such as appeal to the BVA or the CAVC. Certainly it can be described as a "clear and unmistakable error" but it is not an irrevocable error unless you fail to appeal. If you got the short straw on a rating and feel you got screwed, you file the NOD and contest the disparity. Filing a new 21-526EZ is a new claims process and it not the proper legal path to follow if you are dissatisfied with the rating. VA will not correct your semantic error and tell you to file the 0958. I hear CUE bandied about here as a repair order the moment you get a lowball rating or a denial based on incomplete or erroneous information. As long as a claim is viable or still in appeal, it can be repaired or modified via a NOD and a substantive appeal. A CUE claim is a Motion to Revise a previously decided claim that is closed. When you file for CUE, you are legally referred to as the Moving Party or Movant. When you file a VA claim, you are referred to as the claimant. When you file the NOD or Form 9, you are still the claimant. When you file an Extraordinary Writ, you are called the Petitioner. Each legal mechanism has it's terms that Vets need to become associated with to avoid confusion. CUE can also mean 'clear and unmistakable evidence' depending on it's usage in a legal document. Save yourself a lot of lost time and grief and make sure you are arguing oranges to oranges rather than apples.

Yeppers and be sure to mail it to the Intake Center for your state rather than to your local Puzzle Palace. They'll just have to forward it if they don't accidentally shred it with the junk mail from Ikea and Cheapo Depot.

Everything has to be filed on the 526 EZs for the new VBMS system since March 25th, 2015. VA published a directive to that effect in the Fed. Register. Same for the 0958 NOD and Form 9s. Likewise requests for c-files (21-3288). No more SF 8.5X11(white) permitted anymore. We're boldly going somewhere in the electronic world. Remember, Congress demanded we go paperless and Shinseki put down his marker in 2010 promising as much.

Coffee nose is one of my specialties. Here's Chapter Two for the old soldiers of my era. https://asknod.wordpress.com/2015/09/02/vbms-the-new-electronic-frontier-part-ii/

Always get the combat info in and the medal(s) proving it. If you file for anything else you will get the 38 USC 1154(b) Combat presumptive. Anything you say, short of stuff about alien abduction, is the truth, the whole truth and nothing but the truth. VA has to accept it as the truth and they can't just say it's a fig newton of your imagination. This is important in claims and is referred to as credibility. It's more important that the presumption of soundness when you enter service.

My doctor calls it pernicious anemia. I have it but probably for another reason-notwithstanding that I have two AI diseases. I have Porphyria Cutanea Tarda-yep- that one like chloracne where you had to manifest it within a year of departing the leechpit. I get a 1-pint phlebotomy every month. After about eight months I'm almost bingo for RBCs and take a 3-4 month vacation to reload. It's like LSD when I bend over. Whole Lottsaspotz before my eyes.

Yuku's VBN is an odd duck for a Veterans site. The Moderators' animosity there is palpable in virtually every post. They seem to have innumerable 'former staff' past their prime who feel compelled to keep on advising Vets . True advice should be something useful, not a litany of negativity. I will never forget my Kindergarten teacher's 'success in life briefing' -"Be a do bee, not a don't bee." It served me well. Advice here on Hadit is always conditionally given with the best intentions. VBN's helplines seem to eventually segue into a negative vein and requires the thread to be halted to prevent verbal bloodshed. I have seen Theresa take a more lenient tack in recent years to allow everyone to have their say. Fortunately, the members of Hadit are more civilized and here to learn rather than flame their fellow Veterans. I cannot begin to say how much I admire her for what she created. In retrospect, I'm sure the Veterans Administration wishes they had suppressed this site in its infancy. The number of Veterans with positive outcomes here ( as well as mine) is phenomenal -probably far more so than VBN. When I began asknod, one of my primary concerns was that everyone would be heard in their entirety. Censorship to enforce a philosophy serves no purpose other than to promote one philosophy to the exclusion of all others. That would be fine if it were universal and applicable to all. Veterans do not fit into the same category. There are millions of permutations of any claim so advice must be narrowly structured to fit. VBN's wet blanket approach (our way or the highway) turned me off early on. The quality of the advice, for the most part, was marginal from the moderators. I, like you, found myself persona non grata in a short time and was shown the door. It seems Murphy's First Law of Advice is alive and well over there. Grandma always said "If you can't say anything nice about someone, come on over here and sit beside me." I do not subscribe to that. We are the equivalent of an endangered species with few protections. The last thing we need is infighting and backbiting amongst ourselves. In Veterans claims, the best policy is to offer good advice or get out of the way and allow someone knowledgeable to do so. Bad advice is worse than no advice at all. Grandma also gave me the Veteran's Miranda warning that has served me well- "Buckwheat, you have the right to remain stupid. Try not to."

Here's a good start on claims 101 for all of you beginning your journey. VBMS is going to be an exciting new tool some day and you can be in front of it or chasing it. Good Luck to you all. https://asknod.wordpress.com/2015/08/30/vbms-the-new-electronic-frontier-part-i/

PIC (Pilot in charge) Jack C. Smith (yeah right) had a nickname of JFC-the J standing for Jesus and the C for Christ. He had more incidents in Porters and Helio Couriers than any I'd flown with. This day he turned into the mountain instead of away. We were doing about 75 knots with 5 turns of flaps. It stalled the moment he turned. I had a harness on and was paying antenna wire out the belly in 1/4 mile sections. He was circling to allow me to connect a new reel (one of six on board). Great pilot but he was always outside the power curve. All AirAm pilots had interesting names. I also flew a lot with PIC Ben Franklin until he augered into a hillside VSTOL airpatch on final in 5/71.

It moved me to write about it. https://asknod.wordpress.com/2015/08/26/lz-cork-va-runs-the-table-on-butch-46-years-later/ I started getting hits from VA's Vantage Point. It must be a good view from there. https://asknod.wordpress.com/2015/08/28/va-vantage-point-pleas-excuse-our-censorship-construction-in-progress/

One last thought. When you allow a VSO to represent you, do not be surprised if they go behind your back without your permission. You give them a Power of Attorney but that should still entail some supervision. VSOs do not see it that way. An attorney would never do this to you without asking first. Filing a NOD immediately without some intermediary discussion is a recipe for a 2 year delay. You need to make an appointment and go in to talk to the rater with your representative. I doubt he/she will though. Perhaps that is why so many of us advocate that you do it yourself. It's scary and daunting but the results are often far better.

I access a librarian at the University of Texas (Dallas) occasionally to get accident photos for different A/C and choppers to buttress claims. All those references are to file folders of Air America's records right down to USAID contract they were delivering. Some contracts weren't for freight per se. Some were people freight going from one place to another. Here's a decipher: UTD/Kirkpatrick/B1F1) is University of Texas Dallas. Kirkpatrick was the Air Operations Center Supervisor of the region/airport in question. B1 is Bin One and F1 is Folder one. I had to search to find the P-6 Porter I crashed in for evidence. I remembered the tail # and that it was dry season. They had the full meal deal down to a PIC statement of the crash and another from the right seater. I was the kicker that day.

Beech C-45G (10-2) N5454V AF-106 Sept. 63 USAF 51-11549 Service history: 8th C-45 acquired by Air America, newly bought in the USA (Minutes ExCom-AACL/AAM of 20 September 63, in: UTD/CIA/B7F2), initially probably financed and owned by the Pacific Corp.; officially bought by Air America only on 31 March 64 (List “Accumulated costs as of 31 Dec. 67”, in: UTD/CIA/B40F8); converted to Ten-Two in November/December 63; it departed the US in November 63 and was ready at Bangkok in December 63 (Minutes ExComAACL/AAM of 29 October 63 and 3 December 63, in: UTD/CIA/B7F2); it was a TenTwo sprayer operated for ARPA out of Bangkok; a photo showing N5454V in normal Beech 18 colors with spraying gear, believed taken at Bangkok in mid-sixties, is preserved in: UTD/Kirkpatrick/B29; a photo showing N5454V all silver is preserved in: UTD/Hickler/B32; assigned to contract AF62(531)-1757 and based at Hua Hin on 18 December 63, still in February, April, and July 64 (AAM aircraft availability of 1 February 64, in the possession of Ward Reimer who kindly faxed it to the author on 17 February 2004; Operations Circular of 1 April 64, in: UTD/Kirkpatrick/B8F4; Aircraft status as of 7 July 64, in: UTD/Kirkpatrick/B1F1); based at Hua Hin in April 65 (Aircraft list of April 65, in: UTD/Walker/B12F3); based at Bangkok between 3 May 65 and 27 October 65 (Planned Aircraft Assignments, Memos of 3 May 65, 22 May 65, and 27 October 65, all in: UTD/Walker/B12F3+4); assigned to contract AF62(531)-1845 for use out of Bangkok in November 65 (Aircraft status as of 1 Nov. 65, in: UTD/Kirkpatrick/B1F1); still in April and May 66, basic (Aircraft status as of 8 April 66, in: UTD/Kirkpatrick/B1F1; Aircraft status as of 4 May 66, in: UTD/Hickler/B1F2); lost a landing gear when landing at Gia Nghia (V-202), South Vietnam, on 31 June 66; repaired; an Air America microbus struck the left engine of N5454V, which was parked on the north ramp of Don Muang airport, Bangkok, on 18 July 67; both main landing gears were displaced laterally by the impact; returned to service on 30 July 67 (XOXO of 18 July 67, in: UTD/Hickler/B27F1; Accident report, in: UTD/Hickler/B24F1; Minutes ExCom-AACL/AAM of 25 July 67, in: UTD/CIA/B8F2); repaired; at Saigon on 19 December 67; assigned to CSG contract F62531-68-C-0007 as a basic aircraft for use out of Bangkok in May 68 (Aircraft status as of 1 May 68, in: UTD/Herd/B2); on 11 May 68, the tail wheel of N5454V collapsed when landing at Bangkok (T-09); repaired (XOXO of 11 May 68, in: UTD/Hickler/B25F13); repaired; in use at Bangkok at least from 23 July 67 to 29 October 68 (Flight crew member monthly movement report of A. J. Zarkos, in: UTD/Zarkos/B1F8); based at Bangkok as a spare aircraft 16-30 June 69, but ferried from Bangkok to Saigon on 14 August 69 to be assigned to contract AID/VN-41 for use out of Saigon in the second half of August 69 as a replacement for N9521Z (F.O.C. of 15 June 69, in: UTD/Hickler/B8F7B; F.O.C. of 15 Aug. 69, in: UTD/Hickler/B1F1); put into inactive storage at Tainan on 18 November 69; still there on 1 May 74 (F.O.C.s of 1 July 71, 15 July 71, 1 November 73, 1 December 73, 1 April 74, and 1 May 74, in: UTD/Hickler/B8F7B+C). Fate: sold for scrap at Tainan on 10 December 74 (Summary of aircraft sales, in: UTD/CIA/B40F6); the cancellation “as scrapped” was requested on 19 December 74 (Letter by Clyde S. Carter dated 19 December 74, in UTD/CIA/B17F3); the registration was cancelled on 24 December 74 as scrapped. I have virtually all the details on most AirAm aircraft. I used to fly with them. This one was mostly used for JUSMAGTHAI runs up to Udorn or Wattay after it's brief career as a spray rig. US Ambassador used it occasionally when his AC was in for repairs. It retained seating in the cabin and was never used for cargo. For the most part, it grew cobwebs at Don Muang AB unless used for backup AC in RVN.

What disturbs me is after the third party subcontractor converts the c-file into electronic form, there is not a certification process to confirm it is complete and unredacted. At that point, the original paper copy is destroyed with no verification that something didn't stick in the copy machine or fall on the floor. I had a gal in Baltimore that spent a year + getting her file. It had been sent to Detroit on an outsource to help clear Baltimore's backlog. After filing a Writ, we got the file out of Detroit but it was incomplete and had no info on the numerous Congressional Inquiries we'd submitted. They also neglected, in spite of our specific request, to include the right and left flaps. Nevertheless, it was "certified" as the true, original and complete record. It is now in electronic format and still incomplete. Thank God we got the 100% schedular and the P&T granted.

Only one attorney/VSO can hold the Vet's POA. If the Vet hires the atty at NVLSP, he has to execute a new POA, which supersedes the old one. When the Vet gets the JMR back to the local RO for readjudication complying with the JMR, he is free to hire true counsel. Some do. Some are clueless and unrepresented and never know it. The point I was making was a JMR is a glorious opportunity to begin anew while keeping the old filing date. My claim turned into a JM'P'R. Walsh bargained with them and struck a modus vivendi. I agreed to relinquish two low dollar appeal items for the big ticket item of SC back to 1994. I did not desire to get a reversal. I wanted the safest, quickest path and that was a Joint Motion for Partial Remand. I won but I won on the record. I didn't have to go back to the RO and begin over. The OGC instructed the VLJ to swallow his pride and grant the claim because he was wrong. That's different than a Hail Mary and a start over. Fighting to a reversal is dangerous and pointless if the repair order is a simple back room bargain and a quid pro quo. That's why they have those Rule 33 conferences. Everyone gets to air their dirty laundry.

Loyal, I have to part company with you on your logic. Here's why. NVLSP, and basically any attorney who practices at the CAVC, has to perform 30 hours of pro bono time a year as CLE (continuing legal education). Even I will when I get my certification. Even Bart has to. I met him in SF in April. Great guy, by the way, as are all the big names. The object of the NVLSP, and all attorneys who help us get justice, is to live to fight another day. When you get to the CAVC, your claim is on life support. This is the last dance. No more evidence can be submitted. No more testimony. The jig is up. If you get the JMR, you are allowed to begin anew and rebuild what the VSO forgot (think nexus). At this point you have pulled the bacon out of the fire and are basically salvaging all your hard work and adding to it. If you decide to play hard ass and demand an up or down at the CAVC, you're toast. NVLSP often gets a JMR for the thinnest of reasons but who cares? Saving an existing claim and remodeling it is far better than beginning all over and having to come up with N&ME-not to mention the time element. The problem here is once the claim has been salvaged, it has to be finessed. If your legal help effectively left you hanging and you lost twice, the very last thing you want to do is hire them again. They pretty much made a hash out of it and have demonstrated they have no legal talent. Not all VSOs are gomers-given. Not all VA attorneys are Clarence Darrow either. Finding a good one after obtaining the remand should be the very first thing you do. I have to admire any law dog who practices VA law. They are few and far between first of all and take a pittance compared to ambulance chasers. In a word, they have a heart-something most attorneys in civilian practice have surgically removed when they get their JD. Remember that many Vets who come here listen to what we offer as advice. Each case is unique and needs a concise perspective based on individual metrics. There will never be a one-size-fits-all blanket statement on what to do in a JMR other than to get effective legal help and let them do their job. NVLSP is a court of last resort available to Vets who are penniless. EAJA is the Government's way of remunerating the attorneys for this valuable service even if the lodestar is a paltry $187.00 an hour. Most attorneys can get $250 or more for the same services. This alone shows their altruism and value. There's a very good reason we lose and you were the first to point it out to me. VSOs owe their allegiance to VA-not the Vet. They are bankrolled and given their own EAJA funds in the form of the POA payment when you sign with them. Add to that they have no legal training to speak of. They are mailmen and nothing more. You tell them what you want, they write it up and send it in. Few are the ones who tell you to go out and get a nexus letter from a doctor. What legal system in America denies you quality help until you have already lost at the first stage? You have two bites of the apple in this game-the RO and the BVA. The CAVC is merely there to make sure your necktie party was legal.

It's not a case. It's a claim on remand and, as such, it's in the case dockets. Get the actual case number and you can read each submitted document (except the c-files) to determine the rationale for the Remand. I can bet you $100 what happened. NVLSP got the JMR from the CAVC. It went back to the RO and the same VSO sat on it and added nothing (read no nexus) to buttress his evidence. He loses again not knowing that no one has actually helped him. It goes back to the Board and they deny again based on no new evidence or repetitive evidence already of record. The BVA decision will probably say that the Vet has submitted nothing from a doctor to link his current injury to the incident in service. Whereas the VA has done a C&P and the VA examiner determined that it was not as likely as not that the injury is related to service. Since there's only one nexus (from VA) that is the one the poor judge is stuck with and sadly, the Vet loses. NVLSP's job is to get your neck out of the noose and give you another bite of the apple. At that point, you need to get an agreement with them to take the case or find another attorney to take it. The last thing you do is return to the gomers who are responsible for your loss.

You have to challenge the C&P doctor's CV within 60 days of issuance of the results. File the NOD. Let them know you are calling the CV out, even if it's past the 60 day limit. Ask for the asthma credentials. Request a DRO hearing and present the IMO into evidence. One thing I caught myself doing on claims of my own was trying to shape it into the next higher % of rating by my optimistic observations and not the evidence of record. The claims rise or fall on what you have presented. Your medical opinion is worth nothing. In fact, The raters don't like to be handed internet articles and theories. It hinges on what John Q. Smith, MD says. Get the IMO and go to the BVA. Present it there again if they give you the Bum's rush at the RO. 85% fail at this at the outset. 22% get it after a short fight. 65% get to fix it if they go to the CAVC unless they win it outright there. Oddly, only about 4,000 Vets a year out of 1.5 million appeal this high. I'm 2/2 there so far.

I believe that's a good point. Some DCs take it into account and some don't. Best to review the specific rating. Of course, the asknod method is Win or Die. I prefer to say that any regulation, if it's ambiguous, is open for interpretation. If one regulation specifically states medication as an ameliorative must be considered, that substantially conflicts with a regulation that does not. This has never been adjudicated in the first instance by a panel of the CAVC. A case can certainly be made that there must be uniformity in all regulations regarding medications rather than a haphazard cacophony of differing regulations that confuse the Veteran. Always remember, we are dunces and ignorant trailer trash. Because of it, we are to be accorded every benefit of the doubt. Remember, Congress wrote the Statute-VA merely attempts to convert it into everyday practice. If the regulation can be proven to be at odds with Congress' intent, guess who loses? The CAVC is not at liberty to make a decision on the VASRD because they (VA) get what we call Chevron deference-i.e. the VA Secretary is free to write what he thinks Congress meant. It's up to us to eviscerate what we find wrong. Look at what Bradley and Buie did for TDIU. They upended years of precedence when they did so. And they created lovely new TDIU and SMC precedence in the offing by fighting it. No regulation is immutable. Statutes-yes but not regulations. If you never appeal, you admit VA is correct. We can't have that without a fight.

That's the best reason for becoming a member here. Somebody has probably already been there. If not, you get to be test dummy for the rest of us. Hell, I'm going for EAJA on my Writ-something to date, no one but Gene Groves has received so far. Stay tuned for August 31st when the OGC has promised to answer the Court on this. OGC plea for time.pdf EAJA appl..pdf

Try this one on for size: A claim of entitlement to VA benefits may be either "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2009). Pursuant to 38 C.F.R.§ 3.151(a), A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. 5101(a)). A claim by a veteran for compensation may be considered a claim for pension; and a claim by a veteran for pension may be considered a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151(a) (emphasis added). "The Secretary is not automatically required to treat every compensation claim as also being a pension claim," but rather "has to exercise his discretion under [38 C.F.R. § 3.151(a)] in accordance with the contents of the application and the evidence in support of it." Stewart v. Brown, 10 Vet.App. 15, 18 (1997), citing Willis v. Brown, 6 Vet.App. 433, 435 (1994) (the operative word "may," in the regulation, clearly indicates discretion). With that said, it clearly says to give you, the Vet, the larger of the two. In legal and financial parlance, giving you the compensation tax-free would have to be greater that your relinquishing SSD/SSI and opting only for the pension alone. An easy legal argument to win, n'est ce pas?