Judy

Thank you to everyone who replied. My BVA Appeal was denied.

Hope I am posting replies to the correct place here. Berta, BroncoVet, Alex and all. Thank you for your replies. Berta is right, I have been at this many years. Let me try to cut to the chase here. DIC was won in 2009 on a reopened case in 2007. Done. I filed 1151 and it was denied. I filed EED on the DIC but seriously I didn't have a winnable case (due to reopened claim). Done. In 2012 I (again) sought out Dr. Bash and he thought the possibility of a "win" was to CUE them on the 1970 rate reduction of the vets disability (100 down to 30%) so we went with filing that in 2012....jumped through all the hoops, RO denial, appealed, denied, ....finally it went to BVA and four years later (2016) I had first BVA hearing on the CUE. Strong case, Dr. B and I attended and both felt encouraged as we left the hearing. Then came the letter that the RO had never officially issued a FINAL decision/denial SO BVA remanded it. Now, RO issues final denial and back to BVA for a second hearing (June 2017). BVA did not assign same VLJ from the first hearing. I told 2nd VLJ that I was surprised as I thought the second hearing would be the SAME VLJ. I was told to "wait" and they would go see if first VLJ was available to preside; the second VLJ returned and said that was not possible so the hearing proceeded. After 60+ days, I get a phone call from an official explaining to me (as already mentioned here) that I MUST have yet a third BVA hearing on the matter and it MUST be a third VLJ so as to have an "uneven" numbered panel of VLJ's to make the decision. Okay, I got it. December 2017 I have the third hearing, third VLJ and I wait. On February 21st, I emailed Secretary Shulkin and 5 others requesting assistance and quoting regs to them showing the error(s) (including the CUE's) on the part of the VA AND the BVA. I won't go into the details of my email but I will say it was, in my humble opinion, compelling to say the least. Then yesterday, I got the phone call from "litigation" telling me the decision was made on February 23rd (two days after my email to Secretary Shulkin and others). I sent a text to Dr. B. and he returned text to me saying "most unusual" that I got the phone call. Hmmmm. That's all folks. That's it.

CUE claim has taken six years. I've had to endure three (3) BVA Appeal hearings over the past 21 months. Today I got a phone call from someone in "Litigation" she said. Informed me that my claim was decided on February 23rd and the letter would be forthcoming. This is a very old CUE case. My first BVA Appeal hearing was the Judge I'll call "S"; the case was remanded back to RO for lack of jurisdiction (by BVA) which necessitated a second hearing. BVA did not assign Judge "S" but rather Judge "R" presided. Later, I get a phone call from BVA official explaining to me that "two judges cannot make a case decision as it could possibly be a tie, and that would be NO decision, therefore, I MUST have yet a third BVA Appeal hearing with yet a third Judge. That was held (now 19 months ongoing) by Judge "P". So today I get the phone call mentioned above. Since litigation is the jurisdiction of the OGC, I wonder what (if anything) my phone call (ahead of written notification) means? Any insight from anyone? Berta? Thanks to all. Judy B.

Wow Broncovet, I really appreciate this post and especially since you are quoting regs as written. Was this reg revised and if so, I wonder what year? I am in a head to head battle here over a 1970 decreased rating (100% to 30%) of my deceased vet husband (DOD 1990) and very old, convoluted case to say the least. I fought a denied DIC from DOD 1990 for five years and gave up. Reopened DIC claim 2007, hired Dr. Bash and after another RO denial, went to BVA and finally won in 2009 (only 2 years retro of course). My current battle (one of two claims) is a CUE case (from 1970 as mentioned here) and I had a BVA hearing May 2016, was remanded due to "BVA lack of jurisdiction"...back to RO to issue "final SOC"..they did. Denied. Now yesterday (June 6, 2017) back to BVA for a SECOND time (on the same issue). The 2016 original Judge was not brought in but a judge new to my case was used instead. This judge Didn't even want me to enter my statement, said, " if it contains only those facts that you stated in the previous (2016) BVA hearing then I don't want to hear that again; it is in the record and I can see it. So are you telling me that you have "new and material" evidence in today's statement?" I replied to this judge that last month (MAY 2017) I had received a CD of the RBA and it consisted of 942 pages. I have spent a great deal of time and a lot of hard work going through it and it is possible that I have found evidence\facts which have not been entered into the record by me. I also found errors." Judge asked," what kind of errors" and I told her that I received a transcript of the 2016 hearing in the mail and some things that were said in that hearing were not mentioned and also there were MANY places where the transcript said "....inaudible"..... I also pointed out that the copy of the (SAME) transcript contained IN the RBA was different than the one I was mailed, and in fact they did not match. Okay, didn't mean to write a book here, sorry. I'm wondering if this reg you posted was in effect back in 1970 as it would aid my CUE claim. Thanks for all that you do for the veteran's needing assistance. PS. I have had no luck with ANY SO organization that I have used over the years (and there are several) so I have represented myself since 2007 (in the DIC) and continue to do so in this CUE claim although I do have Dr. Bash on board. If this isn't won after this second BVA hearing, I shall go to CAVC and will need an attorney. I already have another claim "open" on a "EED" for my original DIC case (won) and have received a ton of snail mail from as many attorneys on that one. I just received 60 day notice to file a "brief" on that one as it is now at CAVC. Thanks again, Judy

Hi Mark, I had a BVA hearing here in May 2016 and it was remanded. This one (yesterday June 6) was a second BVA on the same issue (CUE). They assigned a different Judge (I didn't expect that from all that I had been told). I have no idea how it went but I do know that there seemed to be some confusion. A Judge who had no prior knowledge of the facts in the case, postponed my hearing a half hour to go see if original Judge was "in the building" and could take over the hearing. No and no. So the hearing was held "as is" and she informed me that she would have to "dig way back and deep" into the case. I told her I had prepared a statement containing facts proving my position/claim and she told me she did not want to hear anything I said at the previous hearing as that was all in the record already. I then told her that I had received a CD containing the entire RBA and since it was 942 pages, I had spent a lot of time and work going through it only to find inconsistencies as well as errors. I could go on and on but she finally allowed me to enter my statement.... This is a 27+ year old claim and very convoluted at best. I have had Dr. Bash on board for 10 years now...I am once again in a waiting mode. I hope your hearing went well for you Mark. Judy

I have a BVA hearing scheduled June 6th via video teleconference at Houston RO. I had the first BVA on Appeal hearing (video tele.) in May of 2016 and it was remanded for Jurisdiction back to RO. The RO denied again and I filed another appeal (BVA did not have jurisdiction at the time of the 2016 BVA video teleconference) so now another hearing is scheduled on June 6th with proper jurisdiction at the BVA. That being said, is a claimant allowed to audio tape the hearing? I ask because I have received a written transcript of the 2016 hearing and it is insanely erroneous. I also have just received a copy of the complete RBA (on CD) and in reviewing it, the transcript from that same hearing is different and also flawed. Any advice? Can we tape the hearing? Should have said, this case is a CUE case. Thanks, Judy B

Buck52, yes. I had a BVA teleconference at RO in 2016 (was remanded). When I finally got the transcript, it is terribly flawed. I mean really bad. I'm up for a 2nd BVA teleconference and wonder if anybody knows whether it is allowed for the claimant to audio tape record the hearing? Judy B Ooops, sorry, you said DRO but yes I did earlier.

MarkInTexas, is your DRO hearing at the VARO Houston (June 6, 2017)? Judy B I have a BVA (on Appeal) hearing there on that date also. My second one. First one was remanded and now were back to BVA hearing.

Tbird, I see the link here for the Historical Compensation Rates (of) 1974-2004. Can you tell me where to find the rates from 1970 - 1974? ( Dr. Bash and I firmly believe we have won my CUE; waiting for decision of course) and I would like to find those old compensation rates. Thanks, Judy

I don't see any activity on this thread since April 4, but will comment anyway. I have not been on hadit for about 4 years. I fought 19 years for DIC and by using Dr. Bash and his IMO, plus his credentials, we won. It was a case that was "closed" for 12 of those years and then re-opened so as you could guess, they only awarded me back to the re-opened date (2 years; not 19). I filed for EED on the decision and was denied. (let me say here that I filed 1151 claim; denied. I filed CUE claim; denied.) Filed Appeal on CUE and was denied. Filed NOD and again denied. Filed for Reconsideration and was denied. Went to BVA and I requested BVA DRO via videoconference; took 4 years (2012 to May 12, 2016). Again I used Dr. Bash; brought him to Houston to appear with me at the hearing and all went well. We waived right to Remand (been there, done that...not good) and asked to hold open for 60 days; request granted. Dr. Bash provided me with IME same day as the hearing, I forwarded it to VSO and it was filed to the record same day. Now I'm waiting .... 60 days wait will expire on July 12. They have one year to make decision however Dr. Bash is extremely confident about the outcome of the decision. I agree with the comments regarding VSO's as my experience(s) (and they are many) have never been very positive or helpful regarding them. I can't say enough good things about Dr. Bash. If one can afford him, he is worth the price. He knows the VA regs, most of the Judges know him and he knows them, and they know his reputation as well.

Berta wrote: "I will refrain from the enhanced DIC question you had as I don't understand how you did obtain enhanced DIC .This is a good question for your lawyer" IF they did in fact ERR in favor of the claimant in this case; CAN THEY RESCIND this decision ?? Is that possible? Judy

I still do not know what to CUE them on. The lawyer told me to CUE them on the "veteran was 100% disabled by VA for 8 years prior to his demise".....this is however NOT the way the reg reads. THIS is related ONLY to the enhanced DIC amount. He is quoting it as though it is the reg for obtaining SC DIC (in the original claim) without question. NOT TRUE. I am receiving SC DIC (awarded under the "benefit of the doubt rule") AND I am receiving the ENHANCED DIC amount as well. I, like Berta, do not understand how or why I was awarded the ENHANCED DIC if I did not MEET THE 10 year rule for the SC DIC in the first place. Lawyer is indeed mistaken in telling me to file CUE using the the 8 year rule as a basis for CUE. Again, this is a quote from the lawyer: "The way I understand the rule is if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse." and "Where a veteran at the time of death either was "in receipt of" compensation or, in the alternative, was "entitled to receive" compensation, for service-connected disability continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or release from active duty, eligible surviviors may receive benefits at DIC rates as if the veteran's death was service-connected." My question regarding this above statement is this:( Veteran was discharged at 100% in 1969. Veteran was re-rated by VA in 1971 (to 30%) unappealed. Veteran was receiving continual care and treatment for SC disease through and until June 1982 when again VA rated him at 100%, continuously until August 1990 when the veteran died.) DOES THIS " rated totally disabling for a period of not less than five years from the date of the veteran's discharge or release from active duty, eligible surviviors may receive benefits at DIC rates as if the veteran's death was service-connected." MEAN the FIVE YEARS IMMEDIATELY PRECEEDING DEATH? OR DOES IT MEAN THAT HE MUST HAVE BEEN CONTINOUSLY RATED AT 100% FOR THE FIRST FIVE YEARS FOLLOWING DATE OF DISCHARGE? What is he talking about in saying "the rule is if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse".... "if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse." DOES THIS MEAN the FIVE YEARS IMMEDIATELY PRECEEDING DEATH? OR DOES IT MEAN THAT HE MUST HAVE BEEN CONTINOUSLY RATED AT 100% FOR THE FIRST FIVE YEARS FOLLOWING DATE OF DISCHARGE? Needless to say, I am still very confused. What is the basis (reg) that I am to file for CUE? Thanks, sorry to be so repetitive but I lack adequate understanding at this point. Judy

Thanks, I understand NVLSP now. That is not my case; not Nehmer. I googled veteran's lawyers some time back and contacted 4 oor 5 of them; most said I did not have a case, including B & M. I persisted and found the one I mentioned who is now NOT representing me until I file CUE and get denied (on my own). BTW, this "PRO BONO" list... does that imply that IF they take your case and IF it is won... they will not charge? Hardly seems plausible to me but just askin'... Again, I don't even know what to CUE at this point nor where to file; I presume VARO though. Judy

Unfortuantely (for me) at this point, I do NOT have a lawyer. They made it quite clear that they do NOT represent me at this time. No merit in my present claim on appeal for EED and they told me to file CUE on my own; if denied, then contact them again at that time. Can anyone point me to a NVLSP lawyer (or list of them) who might be of greater assistance to me? I definitely have unanswered questions, I know that I don't understand it all well enough to proceed without professional help. After reading all the information (from links too) that Broncovet posted, I DO KNOW THIS: In my ORIGINAL DENIAL of 1990 from VARO and as it proceeded to BVA, it was REMANDED to RO by BVA and in that REMAND it stated that "in service med recs were not available in the C File and the BVA REMAND instructed the VARO to "do everything possible to obtain prior med recs, specifically those "in-service" med recs".... does this constitute (perhaps) that the ORIGINAL DENIAL FROM RO did NOT "consider all the evidence" namely, those "in-service" med recs? LATER, when the RO again DENIED it....it never states whether they DID or DID NOT review those "in-service" medical records... so how do we KNOW if they did or didn't OBTAIN THEM, REVIEW THEM and/or CONSIDER THEM... in the FINAL DENIAL of 1994/1995. I need a lawyer. Judy

Thank you Berta and Broncovet, I did "hire" (signed representation agreement) the attorney firm (NOT B & M...they didn't want it). That being said, I forwarded ALL decisions(and a lot more) to attorney and after review of all, they said I do NOT have a chance of winning under present claim but advised ME to file the CUE as I stated (at the VARO and based on the ORIGINAL DENIAL from RO back in 1990). They said as attorneys, they are NOT ALLOWED to file my "original CUE claim"; that must be done by me. I MUST FILE an ORIGINAL CUE by myself they say. There will be no help from them at this time. I have had absolutely NO luck with SO's (from any organization). Every one I have contacted tells me that I DO NOT have a case/claim and they will NOT take it on (one told me "I have to believe you have a claim and I also have to answer to my boss in D.C. for accepting a claimant's case"). After doing so, IF I receive a denial of the CUE, then the attorney's could and would take it from there. He felt strongly that I have a winning CUE if filed against the original denial and at the RO level. He says to cite as CUE: "The way I understand the rule is if the veteran were entitled to 100% rating for 5 years prior to death, the DIC is granted the surviving spouse." and "Where a veteran at the time of death either was "in receipt of" compensation or, in the alternative, was "entitled to receive" compensation, for service-connected disability continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or release from active duty, eligible surviviors may receive benefits at DIC rates as if the veteran's death was service-connected." My question regarding this above statement is this:( Veteran was discharged at 100% in 1969. Veteran was re-rated by VA in 1971 (to 30%) unappealed. Veteran was receiving continual care and treatment for SC disease through and until June 1982 when again VA rated him at 100%, continuously until August 1990 when the veteran died.) DOES THIS " rated totally disabling for a period of not less than five years from the date of the veteran's discharge or release from active duty, eligible surviviors may receive benefits at DIC rates as if the veteran's death was service-connected." MEAN the FIVE YEARS IMMEDIATELY PRECEEDING DEATH? OR DOES IT MEAN THAT HE MUST HAVE BEEN CONTINOUSLY RATED AT 100% FOR THE FIRST FIVE YEARS FOLLOWING DATE OF DISCHARGE? Is this the basis of my CUE as related to the ORIGINAL DENIAL FROM VARO? "Your lawyer is right as to filing at the RO level,if the RO committed the CUE,,unless a prior RO decision was subsumed by a BVA decision" According to his review of all decisions, RO committed the CUE. Of course I Appealed the original denial, it went to BVA and was REMANDED to RO and was again DENIED. (I don't understand "unless a prior RO decision was subsumed by a BVA decision") . "IS THE ATTORNEY MISTAKEN in his INTERPRETATION OF THIS 8 year rule (I believe it applies ONLY to the ENHANCED PAY SCHEDULE and NOT THE LENGTH OF TIME THAT THE VETERAN WAS RATED AT 100% prior to his date of death)? I read the reg to say "10 consecutive years prior to the date of death". Theattorney is not mistaken. The potential 8 year enhancement (higher level then the regular DIC amount) only applies to DIC that has been established already under the Ten Year rule." Berta, my AWARD DECISION states that my case was awarded based on "the BENEFIT OF THE DOUBT RULE" and since I KNOW that he was rated by VA at 100% for a period of 8 years plus 2 months..... how does this apply to the "enhanced DIC rule of 8 years"? ...what I mean is that I AM receiving the SC DIC; I AM receiving the "ENHANCED AMOUNT" as well. Does this mean my award was "established already under the Ten Year rule"?? (I do not understand this). It is obvious that right now, at this juncture, I am "on my own" and I truly need to understand WHAT I am basing my CUE upon. Judy