pwrslm

CFR on the Mission Act did not void USC on CUE. USC is the top and the CFR cannot contradict it. So the enactment that you quoted does not apply when it comes to CUE because congress did not delete USC @5109A. CUE is a legal challenge of a decision. The direct challenge to the Secretary is not intended to be a new or supplemental claim. 38 U.S. Code § 5109A - Revision of decisions on grounds of clear and unmistakable error (a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. (b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. (c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant. (d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made. (e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim. (Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)

The VA had me going in for multiple C&P exams on my left leg radiculopathy/foot drop. I went to two and then they sent a notice for a 3rd C&P in 7 months. I got on the 800 line and the CS rep said nothing she could do. I said, no problem, get me a supervisor. She was pissed, but I insisted that it was not about her performance, and she relented. The next day a supervisor called me. Said nothing she could do, and I said not good enough. This is the contact and only route to solve issues with the VBA and I insisted that they had access to the RO and the RO's supervisor chain. Two days later I was notified by the supervisor that the exam was cancelled. All of the info the RO needed was already in my C-File. The repetitive C&P exams resulted from the rating official not looking into my file. Policy says they should only do another C&P in 3-5 years. The VA is a bureaucracy, and much like the military, every one has a supervisor. If the rep you are speaking to does not have the answer and power to solve the problem, go up one rung in the ladder. Unless you are barking up the wrong tree, you will find someone with the power to solve the problem.

I have a hardship cover on my file. I have ALS. You can call the 800 number and they will tell you if you have a hardship cover page on your file. That is how you verify. If your Atty said he did something, and did not, you have to ask what else he missed. Your right to know is the one thing that you have got over malpractice. Have you paid anything to the lawyer? Then you should get a statement covering everything he does/did for the money. Same goes for the % that he gets, you have a right to a detailed listing of what he is/has billed for on your account. They should be happy to do this for you. In the end, if he screwed up, you have documentation to prove malpractice if need arises. Acts of omissions in legal services are grounds for malpractice claims. You maybe should also try to get a fresh update on your CFile. Knowledge is king. Go with the FOIA request.

Not knowing what conditions this covers, it may be wise to submit all medical info that the VA does not have on all of the conditions that you are dealing with. Up to this point, it sounds like you were expecting action on a single issue but instead, the entire file is under review. If you have private medical records the RO does not have, get them in ASAP. These may show that your condition(s) progressively got worse and justify an increase. I used to like the EBenefits site because I could submit any document I wanted on my claim and verify what they have anytime. I think the VA.Gov website has a similar option, but is more restricted because you cannot download and verify what document you submitted. It is less transparent. When ever I see the PCP at the VA, I always give them info on any changes in my SC conditions. This has resulted in MRI's and xrays, as well as ultrasounds and other tests, that they normally would not have done. This also documents the status quo in VHA records that cannot be ignored by the VBA/RO. If you go to private/non-VA providers it is a good idea to do the same thing. Documentation over months and years by any medical professional is a powerful tool for increases.

The VA is supposed to be assisting the veterans with the claims that they file. Generally it’s because it’s the idea that these veterans served the country and VA wants to help them and award them for disabilities that are due to their time in service. Not sure how you mean that interpretations are different, its a pretty basic concept. The ability to provide expert guidance to veterans at the lowest level of claims submission would resolve a lot of the problems. VSO's are as swamped as RO's. They both make a lot of errors. VSO's also discourage Vets from pursuing more complex claims that the VSO rep thinks are not winnable. Fact is, a lot of the time you find that the reason a Vet did not file a valid claim was because of a VSO telling them they would not win. Its a twisted game. If I listened to the Legion rep working for Fla. Dept of VA, I would never have won my first claim. Pending appeals under VA metrics is currently working with over 198,000 claims. Projected budget for 2022 is 228 million. That's a lot of bureaucracy fighting against veterans.

big difference from inside looking out from the outside looking in VSO's are 3rd party entities that screw up a lot as well the claims btwx claimant and VA should not need 3rd party help in a non-adversarial system think like a vet that experienced errors in every claim they made then you will figure out why i said what i said and how it makes sense

I did. thanks

The US Code, CFR, and the massive collection of information provided to RO's that process claims are all provided through a legal network of lawyers. Veterans must negotiate through it all to get a claim submitted. Whodathunk that there would be so many mistakes that end up in appeals where lawyers are paid to fight against Veterans? They call this a non-adversarial system, so what is wrong with a legal advocacy representation to help vets submit claims? Its a lot cheaper to get it right the first time instead of spending billions on appeals. "BS legalese, and Web MD studies " Science is the foundation of medical practice. Studies on Web MD and other found in the NIH database demonstrate medical knowledge, which is usually a very powerful way to show a Judge how big a mistake by a Dr. or other "qualified medical professional" is. It is sad to think that facts like these get such low opinion at the RO level.

This is probably why there are so many appeals. Imagine if there were a lawyer that put these claims together (employed by the VA). A lawyer paid as an advocate for veterans, imagine that! 1-The claim would be right the first time 2-The lawyer would insure that the claim was idiot proof 3-Tens of million that are being spent litigating claims at the BVA and CVA could be cut from the budget. I think that #3 is why they do not want this. Even if they brought in MLS (Masters in legal studies)or certified law clerks (BA degree) it would benefit both the VBA and the claimant. They try to fix things from the top down instead of tending to where the problem originated. Solve the problem at the source, and you will get very few appeals. A legal advocate for the veterans and the RO in the same room with the claimant would solve most problems before they began. They can be part of the PACT. Imagine that. The entire process can be done in one appointment with the PCP doing the C&P exam the same day. Common sense is not a prerequisite for government employment.

My last decision did not arrive after 30 days. I called the 800# and they emailed the decision letter same day. The last 2 times my claims took over a month by snail mail. The second claim I made never showed so I requested they send it twice before I finally got it. Strange how the letters seemed to arrive about 3 weeks later though, and in the end I got 3 of them (over 3 months from the decision date). This was back in 2017. I think the transparency needs to be addressed. The VBA hides too much and refused to communicate with claimants. They talk to VSO's all the time, but if a vet files his/her own claim there is no access to any information. Vets should be able to negotiate the claims system without help. The VA spends tons of cash and we are barred from legal help (lawyers) in initial claims. We need transparency.

I think that CFS can be rated under fibrosis, or it may be considered pyramiding. Chronic fatigue is a symptom of fibrosis from what I understand. I would read the decision letter and see if this is what they explain. Zero % would be a correct rating to prevent pyramiding, that is what they did with me 2 times now.

I dont trust Paypal. TBird can help you set up a monthly contribution that will bypass PayPal. My bank sends a check every month to Hadit. No fee's, easy deposit because it is a bank check, and I don't have to worry about PayPal having my financial info or me having to authorize a monthly payment through any other 3rd party.

If the reg says "within 1 year", should they award the claim back (up to) 12 months? If the records indicated that the conditions severity was noted in medical records, shouldn't they automatically award the claim back to Jul 2019?

The Founding fathers never intended for the Federal Govt to interfere with our right to own weapons. Matter of fact, the plainly stated that what powers were not granted to the Fed Govt, were retained by the States, and the people. By stepping in to remove weapons from anyone, the Fed Govt violated the intent and spirit of the Constitution. Enough said on that. States like Illinois, where they allowed Chicago to ban guns outright, triggered some of the worse gun violence we see today. On an average week, dozens of people are shot and many deaths reported, yet they had the strictest gun laws in the nation. Other places, like Texas, has no place comparable to Chicago. States should follow Texas's example. Common sense "should" rule.

This is one of the problems with the nature of the VBA claims system. If things were transparent, the Veteran could see why these exams are requested and it would cut back on a lot of the frustration we get no knowing. It also helps the VBA to get away with things that they could not if everything they did was transparent. The way it is now, the best a veteran can do is to have a 3rd party VSO. VSO's can see what is going on, and tell you why they are doing a 3rd C&P exam. If the RO is screwing up, it is the VSO's job to say, NO, and get it right. Many veterans never get this deep into claims and have little understanding about how the system actually works. The system as we see it today is splintered across VHA and VBA, with multiple web log in protocols and can be confusing. We have Health-EVet, EBenefits, Vets.gov, and now a special site that is totally disconnected from either for travel benefits. On top of that, they want us to use IRIS to communicate, and they never answer 1/3 of the time. It is a lot for some people to handle, too much for many, and discouraging to say the least. Congress gave them an allowance of billions to simplify this, yet all they have done so far is to make it worse, and more complex, with less transparency for everyone.

Info you should collect to support your claim... Your own lay statement. 1-3 pages max, be concise. The only thing you put in this is based on your own experience, not your opinion or medical diagnosis, but actual life experience like the pain, your own medical history, etc.. More info on lay statements here and here You father can also provide a lay statement and a statement as a physician who treated you from the time you were X years old until you left to become a Marine. His lay statement and his medical opinion should be supported with a copy of his CV and any statements he would provide as a treating professional. (Chiro's are considered professionals, as much so as they recognize a PA.) This is where you get credible evidence showing you never had foot problems before you went to basic. Brothers and sisters, friends and anyone else like High School coach/teachers or friends can also provide lay statements saying they never knew you had any type of disability like Pes Planus. Every lay statement should be sworn to and also concise and to the point. 2-3 like this make a strong case ever stronger. Looks like you already have the medical records from your Active Duty stint. The Military Personnel Records is also something you want to get if you do not have it already. Go over them with a fine tooth comb, validate that every thing they did was properly signed by an authority. Lack of signatures can invalidate even a medical board discharge. I got a guy that spent 32 days in basic 100% P&T disability because the MD who did his examinations for the discharge failed to sign the report they used to discharge him. Never underestimate the probability of a simple mistake. If the board got it wrong, you must show that to be the case. Use any lay evidence and all medical evidence you can get to do so. My first claim came in 2015, discharged in 1984. In my claim the Army MD made up a story about a football injury in High School (a total lie) when I went to sick call for severe back pain. 31 years later I had to track down info from my High School records to show I never played football in high school. My own lay statement was backed up with those records. I spent years in pain because of the ineffective process the Army/VA provided in discharge processing. Never had a clue that they would cover my back problems. I am 100% P&T from the long term effects of what happened to me in basic training. A domino effect from what seemed to be a minor injury in 1979 after 31 years, ended up giving me a lame leg, a fused crooked spine and bad knee's and hips. The secondary connections all add up after you get your initial claim approved. Took me 4 years total from 2015 to 2019.

Its all about context. Once a claim is closed any time you find an error you can file CUE on appeal. 10 years, 20 years later. Its not complex. You can claim CUE on appeal any time. This includes for SMC, TBI, PTSD, or any other claim. You do not need word salad to get the point across. Without new evidence, you may be out of luck otherwise. CUE, on its own, should be sufficient to prove its own self. Typically, any time a VA RO responds to a veterans disability claim, the decision can be subject to CUE. "Any Time" One claim that settled in 2021 stated "...theories of entitlement for the awards sought included (1) that the September 1959 rating decision included Clear and Unmistakable Error (CUE), (2) that his August 1977 claim for an increased evaluation for this disability remained pending until the October 2017 rating decision, and (3) nonapplication of liberalizing laws... " (Citation Nr: 21004423 Decision Date: 01/27/21 Archive Date: 01/27/21) You can literally appeal CUE any time, as shown by the above 62 years after the error.

FYI There is a special board operating on this subject. Attached PDF tells about it. The VA has a duty to seek out these records whenever classified information may be involved with unit activities (as described above). The process is slower than regular claims, however, it makes it possible for VA RO's to validate the lay statements provided by veterans about the involvement of classified missions. Secret_Mission_Claims.pdf

But say you are 35. What do you do if you are bored out of your mind with TDIU? Introduction to Marginal Employment and Protected or Sheltered Work Environments In order to gain approval for TDIU claims, a veteran is required to demonstrate that they are unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. Substantially Gainful Employment is defined as SGA, Substantial Gainful Activity, an amount of earnings that is at or above the federal poverty threshold for one person. Anything less than this is known as Marginal Employment. ... Self & Family Employment Does Not Bar Vets From Individual Unemployability Benefits Self-employment and family employment are other examples of protected or sheltered work environments. https://www.woodslawyers.com/marginal-employment-sheltered-work-environments/ A small family run business can be very profitable and not violate TDIU requirements. Husband/wife teams can become very successful. Always consult with a lawyer when thinking about this. One mistake could cost your TDIU award.

I think a big part of the breakdown in C&P problems are consistent in most VISN's. This VAOIG report is from last March (2021). (VBA Did Not Consistently Comply with Skills Certification Mandates for Compensation and Pension Claims Processors) As cited below, if there are no consequences to insuring that you do your job properly, nobody will be motivated to improve. IG identified 520 people who did not know how to do the job, and only 1 faced any consequence. This may be a union problem because demoting a union member might be barred in certain situations. "VBA Managers Did Not Take Personnel Actions against All Staff Who Failed Consecutive Tests after Receiving Remedial Training The OIG estimated 520 employees and supervisors failed tests on consecutive attempts after receiving remedial training within the review period. VBA’s plan to Congress (implementing the 2012 law) noted that in these circumstances, personnel would be downgraded to lower positions. VBA’s plan further indicated that implementation would occur after notification and appropriate action was taken with the labor union. Review of a sample (42) of these employees revealed no instances of downgrading and only one employee who was converted to a position with a lower potential for promotion. The OIG therefore estimated that 98 percent of the 520 employees and supervisors received no personnel action for failing consecutive tests"

You should be able to find info here. This is a lot of reading, but I think it may hinge on a few things. Was he living at home when Mom passed, and was he adopted, are two issues you should ask about when you talk to someone doing Educational Benefits. a. Eligible Child 1. Months of Entitlement The following entitlement applies to an eligible child under Public Law 115-48, Harry W. Colmery Veterans Education Assistance Act of 2017: § 21.3021 Definitions. For the purposes of subpart C and the payment of basic educational assistance under 38 U.S.C. chapter 35, the following definitions apply. 38 CFR 21.3021(b)Child means a son or daughter of a veteran as defined in § 3.807(d) of this chapter. Finally, this is where the detailed definition of a child (eligible) is. So when you call the 800#, this is the issue you want answered.

@Vync If the metrics were my work, I would add more details. I think that the VBA should rework claims and appeals so that the Veteran can monitor all activity in a claim. Maybe if they knew we were watching them, they would make fewer mistakes. As it is, so much happens behind closed doors, they appear to be unaccountable to the people they serve.

HRL is a de novo (new eyes on the same evidence). Supplemental claims need new evidence. It takes a Psych to do PTSD evals. My degree is Psych but I spec sports motivation and Drug/Alcohol Rehab. The truth is that the C&P Psych is going to speak to you one time and his/her paycheck comes from the VA, so it can become an adversarial relationship when they see Vets. Nothing will probably ever change in this nature, so when there is an error they will tend to err to the benefit of the guy who is paying the bill (IMO). If you were going to VA MH clinics for treatment of PTSD, you may have a much better angle to document the severity of your condition. Speak to your caregiver and see if they agree, and if so, ask them to put the specific information into your VA Medical record showing what is needed for the next higher level rating. By doing this, you have new evidence from a VA employed professional that can be weighted against the C&P exam.

I believe a CUE can be claimed any time on appeal. SMC is just like any other claim. Once it is denied, and the claim is closed, if an error is discovered then it can be reopened any time and corrected. Any denied claim can be subject to CUE.

CUE WARNING: A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney... Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice." Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c). A claimant, thus, has only one chance to file a CUE claim on a prior decision. Id. https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874