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pwrslm

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pwrslm last won the day on January 18 2022

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About pwrslm

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  1. No, I am comparing the failure of the VARO to stick to standardized methods that should deliver equivalent results. If one RO fails to do it correctly, in a HLR, a more experienced RO should correct it. IF you think it was all about money, you missed the boar.
  2. so the extra time involved in hoping you get a smart DRO to review your case really would not have make much of an impact months instead of years, that is the hope behind HLR in HLR they can not look at new evidence, but can consider the errors or issues you bring to them regarding the theory of the claim I am SC w/left leg radiculopathy and foot drop. In 2017 I fell and injured my left shoulder labrum. The RO SC'd it no problem. In 2018 I fell again, and my right shoulder labrum was injured. The RO denied SC. HLR took 30 days. The same theory applied to 2 different outcomes, from the same elements, yet they approved one and denied the other. This is why HLR exists.
  3. Where does it state the supplemental was denied based on the claimants theory? The RO said it was a CUE, not the claimant. To me, this is a valid IG complaint because the RO failed to follow the manual, the CFR, and precedent clearly established years ago. HLR is 30-120 days out and gives the VARO a chance to correct its own mistakes before the Govt spends thousands in lawyers fee's unraveling the mess.
  4. Supporting info on n/m service records: Decision Assessment DocumentEmerson v. McDonald, Aug 10, 2016, 28 Vet.App. 200 (2016)U.S. Court of Appeals for Veterans Claims (Court) What the case is about: The Court held that 38 C.F.R. 3.156(c)(1) requires that VA, upon receiving official service department records, must reconsider a claim for service connection for a disability that was denied when the claim was first decided, even though a subsequent decision awarded service connection for the disability, if the relevant service records had existed and had not been associated with the claims file when VA first decided the claim. ALSO Change Date August 19, 2021 M21-1 X.ii.2.B.2.a. Procedures for Rating Activity Review All supplemental non-duplicate service records received at any time after VA makes a decision on a claim shall be forwarded to the rating activity for review. See the table below for actions to take when reviewing the additional service records. SHALL BE are fairly clear instructions. The first part that states that it is REQUIRED to be reconsidered "even though a subsequent decision awarded service connection for the disability" is a strong indication that the supplemental claim should be processed by the RO. Like I said...the RO Fudged up.
  5. The difference is that ljl presented records that were never in evidence before and no RO had laid eyes on them. An appeal would take 1-2 years. A shot with a HLR would take 30-120 days. As a CUE that had never been submitted before (as recognized by the RO), it still should go through the VARO before the BVA.
  6. Supplemental claim with n/m evidence is presented. IF the RO recognized it as a CUE claim, it would need to be denied at the VARO before an appeal is filed. There is nothing there from the CAVC that states this can only happen at the BVA, but only that the veteran/claimant can file a different theory of CUE. Like I said, the RO Fudged up.
  7. The Board notes that once there is a final denial of a CUE claim, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39,44 (1998) ("Under the principle ofres judicata there is a final decision on issue of [CUE] ... that - 2 ­ • IN THE APPEAL OF e WILLIAM A. WADSWORTH particular claim of CUE may not be raised again. '''(quoting Russell, 3 Vet. App. at 315». However, the veteran may submit a different theory of CUE from the one previously considered in September 2000. See Andre v. Prinicipi, 301 F.3d. ] 354, 1361 (Fed. Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request so that the preclusive effect of res judicata bars refilling only as to that particular assertion of CUE); see also Disabled Am. Veterans v. Gober, 234 FJd 682,694 (Fed. Cir. 2002) ("[A]llowing a claimant to seek CUE review ofa specific issue in a Board decision leaves other issues in that decision subject to their own CUE review.") https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc/0120643407 So even if this was a CUE in 2020, which may or may not have been dismissed without prejudice, this is an entirely different theory based on n/m evidence. In essence, there was never a final decision based on CUE in the past. It goes into the system with a clean slate and should be denied by the RO before any appeal would be made.
  8. But the notice of CUE says nothing about the Board (We=VBA not BVA). If the Board dismissed CUE without prejudice, then there was never a decision. Submission of the Supplemental Claim then should address the issue. The decision of the Board was based on evidence that existed in 2020 that granted an effective date back to 2017. The RO should have authority to revise this based on n/m evidence in 2022. DRO also should be able to revise it. If the 2020 claim resulted from remand by the BVA, supplemental claim should be accepted and processed to an appealable decision. The real issue is that Ijl needs direction of where this needs to go. Myself, I would stick with Mr Cue on this because the lack of candor on the part of the RO fails to provide that same direction from what we have seen. The idea that the claimant needs to wait through a new appeals process (years) vs a revision based on new evidence never presented to the Board is not much different than the last 17 years because the Govt failed to properly present evidence that it has had from the beginning. Further denial of benefits benefits nobody.
  9. Exactly what I was thinking. If it is appealed, it would likely be remanded because it did not address the new evidence submitted. The decision should be null from its inception IMO. I would begin with a lay statement included in a HLR that takes months... This "should" correct it. If not, then the only alternative would be to appeal, which could be years because of remands. This was supplemental claim, not appeal.
  10. The VA RO considered this a CUE. Black and white. Instead of considering it as a supplemental w/new evidence, they altered the basis of the claim. I agree, it probably should be set aside. Thats why I would take the initial step with a HLR. BUT It also depends on what the rest of the claim decision is. We do not have anything else here.
  11. If a veteran asserts CUE to VARO w/RO and then it is denied, it can be appealed to VBA. If VBA denies it, it can be appealed to CVA ..and on up to the SCOTUS. Once the right to appeal expires on a denied CUE, the CFR clearly states that it is final, and if that issue is raised again, the VBA can shut it down without addressing it over and over. Finality is the big part here. If the EED was denied, the RO still must have a reason and basis. The only reason the CUE exists is because the VA failed to gather ALL of the relevant records when it made the original claim decision. Alternatively, if the RO found that the records were already in evidence when the original claim was decided then it would likely be denied based on the failure to submit new evidence (which must be noted in the new denial-reasons and basis). If the current Supplemental claim decision failed to address the issue of EED, then I would start with a HLR based on the lack of a reason and basis for denying the EED backdated to the original claim date. If the TDIU was not raised in the original claim 20 years ago, that may be a problem as well. I do not have access to what the USC and CFR, or the established court precedents were 20 years ago, so I will not project beyond there. ALL of this must have a basis in the law and regulations. The reason for the decision has to be spelled out. Without reason and basis, any decision can be appealed. VBA regularly state the reason and basis in its decisions (REASONS AND BASES FOR FINDING AND CONCLUSION). The Rating Official also has to do the same basic thing. This is why they cite USC/CFR in the decisions, and then explain why the decision was made, why some evidence was discounted or incredible, and what evidence they gave more weight toward in making the decision (ie...C&P exam reveals xyz). This provides Veterans a basis for accepting or appealing the decisions.
  12. I think the SSN is not necessary if she is a foreign national at the time you claim her as a dependent. See the CFR on this. Except as provided in paragraph (a)(2) of this section, VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits (see § 3.216). (2) VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question.
  13. The issue under CUE was the records. I believe that they conceded the CUE so this need not be appealed. He has to read the decision to find out why the claim was denied.
  14. "Based on your correspondence attached to your claim, we also considered this as a CUE claim for consideration under 38 CFR 3.105"" they inferred CUE because of the new evidence that you submitted which accurately fits the basic description of an error based on the govt's failure to retrieve records in their custody YOU did not file it AS a CUE but the FORM of the claim was CUE it is a clear and undebatable error that they fudged up on getting the records now you have to attack this based on the reason for the denial that they should have put in the claim decision there should be an explanation why the EED was not awarded This would be a reasons and basis for the decision The issue that was CUE was not why they denied the claim
  15. Seems like these 2 would put him into the 100% rating via TDIU. Both are almost word for word out of the CFR.
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