broncovet

Carlie.. That is a great point about the CUE has to be about the evidence at that time...that evidence after the final decision can not be considered. BUT...isnt there a "constructive notice" rule about evidence? Isnt it true that if the VA orders our medical evidence, it is assumed they had all of it, even tho they may have shredded or overlooked part of it? So, maybe the VA should have had this evidence..in this instance the CFS evidence..even tho they may not HAVE REALLY had this evidence, but they had "constructive notice of the evidence" so it would have to be considered..for CUE or otherwise. I agree with you about the possibility of "staged" ratings, which would not be as beneficial to the Vetran as getting the whole enchilada back to 1993. I further agree that N&M evidence opens up another whole can of worms. But isnt it true that if cue is proven it goes back to the eed, and N &M evidence is irrelevant to the effective date? Thanks for hanging in there with me..this is really relevant to my claim for EED and I am really trying to get to the bottom of it and have it crystal clear in my mind (which is hard to do, because my mind is fuzzy..lol)

This time, I know where I read it..it is from Jim Strickland, and it is here: http://jimstrickland912.com/CUE.html Earlier I asked about this "one shot" cue, and the general consensus was that it was bunk. (my slang for "bunkum" or "BS"). Still, I do think Jim Strickland is both knowledgeable and credible. So, I will ask again..is Jim Strickland wrong, or are we only allowed one CUE? This is from J.S's "A to Z guide to VA Disability Benefits"

Captain.. Your welcome. Since you have a lawyer, I would recommend you take his advice, but it would not necessarily be bad to tell the lawyer that "some Veterans advocates" online suggested you file for an advance on the docket, or possibly a writ. I would comment that I hope your lawyer is very experienced in VA law. I recall a lawyer commenting about VA law, especially in regard to the number of cases lost by lawyers. He suggests that many lawyers who represent Vets are not experienced in VA law, and it is a wonder they dont loose more. You really need a VA lawyer, not a lawyer that did a will last week, a divorce the week before, and DUI's the week before that. I have a better chance of winning the Indianapolis 500 and I have never even sat in a race car, than an inexperienced untrained in VA law lawyer would have against the 300 or so VA lawyer wolves.

In the case that CFS was granted later, the Veteran should certainly timely file a NOD to the decision awarding CFS, requesting an EED. Or, if he did not timely file a NOD on the EED, he could then "CUE" a finalized decision, based upon a violation of the regulation requiring the VA to consider the entire evidence.

I agree with PR..he should be able to get an EED. I think a lawyer would argue that VA's insistence on the words "Chronic Fatigue Syndrome" instead of the Veterans "Chronic Fatigue" would be in violation of the VA's requirement to give a liberal interpretaion of the Veterans filings.

The following is the transcript of Robinson's statement, and the final statement of Wolcoff: "Why should veterans believe what you say? That, 'Ah ha, now we're gonna get it right'?" Pitts asked Michael Walcoff. "That's a tough question," he replied. "Because, certainly, some of the problems that we see in VBA have existed for quite a while. There have been efforts, believe me, to try to improve the system." "The one difference that I think really is in place right now is that, I believe that we are seeing the advent of technology that is going to allow us to really change the basic way that we process benefits," he added. "Why should the average American care about the fact that veterans, their benefits are delayed, whether it's three years, five years, seven years?" Pitts asked Ron Robinson. "Put on a uniform," he replied. "We served our country honorably and faithfully. And we deserve, we deposited into America's bank account. And when we come home, it's time for us to make a withdrawal. That's why we should care."

Thank you for the transcript. I saved a copy on my computer so if the VA quashes it, then I still have it. I hope people are outraged.

I saw the 60 minutes show. Wolcoff was definately defending the VA, but I thought the Veterans told there side of the story more convincingly. It is clear to me that we do need to get rid of Wolcoff...he basically suggested we keep the status quo, and the million veterans stop complaining. I did find it interesting that Wolcoff did not dispute the 1,000,000 number, because the VA website lists the backlog at about 400,000 and some. I did like it when they asked the Veteran why Americans should care that 1,000,000 Vets are waiting on benefits. In a convincing way, he said that we served our country and made a "deposit" into the bank, and that was our money and we were entitled to make a withdrawal when we got home. The guy from "Veterans for Common Sense" cited a stastic I found interesting. He said that Veterans claims take 6 months for an answer from the VA, but if the claim is denied, it takes another 4 years to appeal. Shinseki was not there..Wolcoff did the talking. I dont think Shinseki wanted to answer any questions about the conflict of interest in that he is a major player in QTC, that does Veterans C and P exams. He is basically awarding lucrative contracts to QTC, that are not bid upon, to his own company, QTC. It is a conflict of interest.

Carlie... Good point about the "deemed denied" thing not applicable in 1993, because I agree with you the VA didnt pull that "deemed denied" crap until later and CUE only applies to the regulations violated at the time of the decision. So, that would mean the claim is still pending (unless it was adjuticated later). But that is not necessarily unfavorable to the Veteran..in fact, he is in a better position if he does NOT have to prove CUE. He could then demonstrate that an error occurred and he would NOT have to prove the strict CUE standard. The VA does have remedies to fix errors that do NOT have to meet the CUE standard. Some of them are..a NOD, an appeal, request for reconsideration, etc. There is a difference between the claim fails to meet the Cue standard, and claims that dont need to meet the Cue standard. One example of this is a simple timely filed appeal. It does not need to meet the CUE standard. The Vet does not have to prove CUE and can still win his claim. He just needs to prove an Error, and the fact that he does not need to prove a CUE standard error, only bolsters the Vets case. That is, he can win without proving CUE...just like a regular appeal. I think of it like the "Cue Police"...it is like a security guard that checks to see if your claim meets Cue regulations. On the other side of the fence, there is no "cue police" because those guys filed their NOD within a year,(or maybe their claim was never decided at all, so he gets a ticket past Cue police because there is no decision so how can it be final) so they get a ticket past the cue police...and on to see the judge.

Cap.. If the "old horse" needs to stay on the track, and needs help to file a writ, or whatever, just because their is "snow on my roof", that does not mean there is no "fire" in my fireplace and I will do my best to help ya, cuz I filed one and learned a little from the experience.

Captain.. If time is the issue, then you can try 2 things: 1. If it is applicable, ask for an advance on the docket due to hardship, such as if you have very poor health, or if your finances were a wreck. I asked for an advance on the docket due to a pending foreclosure and the VA shredded my request. (Yes, I am still upset about it, but I have learned to forgive, thanks to the good Lord) I am smarter now, and I know better and keep copies of everything, and follow up with IRIS emails and ask things like, "What is going on with my advance on the docket"? Of course, if they say "what advance on the docket", then I accuse them of shredding because I sent it certified return receipt requested. 2. Consider a Writ of Mandamus especially if it has been a VERY long time. I think you know these are almost never granted, but I did have some success with them because they lit a fire under the RO, letting them know that I wont put up with their Bull. In the response to my Writ, the RO made some bad mistakes and showed me their hand. Once I found out they had a pair of Two's, I knew my 3 fours would beat their hand, and I ultimately won my benefits. I use what the RO says against them. Beleive me, they use everything I say against me, so I dissect what they say, and re arrange it in a way that favors me. They cant dispute ONE word of what they say, but they dispute everything I say, so I often use their words against them.

I agree..dont miss that exam. It really is possible, if you are 100% to go above 100% and even be eligible for SMC in some circumstances, such as if you have one rating at 100% and others totaling 60%.

I am not disputing that a CUE only applies to a final decision. I just dont know WHICH decision that are referring to? Was it the original decision that became final? It really depends on if the unadjuticated claim is "deemed denied". If it is deemed denied at the same time as the one that was adjuticated, then it is a final decision also. The courts are going to have to make this "deemed denial" thing clear, and I bet Vets and lawyers will test it if they havent already. If it is deemed denied, then it is a final decision subject to review by CUE. It may not necessarily be bad for the Veteran that this unadjuticated claim is still pending, tho it is certainly unclear on whether or not it is "deemed denied". That could be good because then the Veteran does not have to meet the CUE standard. I think I will CUE the final decision, and let THEM tell me, it is still pending. Because if it is still pending, then I can file a writ of mandamus, demanding that my 8 year old claim be adjuticated. I think I will send an IRIS email asking them if the TDIU claim is still pending. Then, I will copy the IRIS email, and "hold" them to their statement. If they say its pending, I will say what do I have to do to get a decision on a TDIU claim that was supposed to be decided in 60 days that has dragged on for 8 years. However, if they say it is NOT pending, then it would have had to been "deemed denied" if no decision addressed the issue.

Wings/Carlie Hopefully, the issue of whether an unadjuticated claim is final after a year or is still pending because it wasnt adjucitated, would be resolved in the most favorable way to the Veteran. Again hypothetically, the Vetran could apply for PTSD and TDIU and the VA only addresses PTSD and makes no mention of TDIU. One year or more passes. Is the Vets TDIU claim still "pending" or was it "deemed denied"? If the Vets claim is still pending, then he would not NEED to meet the CUE standard. If it was "deemed denied" then he would have to meet the Cue standard for appeal after one year. Now what usually happens is that the VA issues another decision, which may/may not address TDIU this time. If the VA awards TDIU on the second decision, could the Vetran not file a NOD for an EED, contending that he applied earlier? He would not need to file a CUE. However, if the second decision also failed to address TDIU, can the Veteran not appeal the second decision within the one year period, contending that it failed to address TDIU also? I am pretty sure we are getting into a "benefit of the doubt" scenario, since it is a grey area whether or not the claim is "deemed denied" or if it is still pending. The Veteran (or his lawyer) could argue either way...the claim is pending, and he is entitled to a decision (or an EED if a decison has been made) OR the claim has been "deemed denied" and it is CUE. I am guessing they could argue for the benefit of the doubt since it is very unclear whether this claim is pending or deemed denied. If the TDIU claim is pending, then it is an error of the VA because they are supposed to expidite TDIU claims. If it is deemed denied, then it is a CUE error.

Wings... I could not open the case you posted, but which claim has to be final? If you got a decision and it adjuticated some claims but failed to adjuticate others, would that decision not become final after one year? So would that not be a CUE on a finalized decision? The CUE would be on the decision that had become final, and NOT on the pending claim. I dont know. I think the courts have recently said that an unadjuticated claim DOES become final after one year. That is, if the Veteran applies for PTSD and TDIU, and the RO blows off the TDIU claim and adjuticats the PTSD claim, the TDIU claim is "deemed denied" and the one year appeal clock starts ticking.

Right. I think when the VA states that, for example, a Veterans TDIU claim is "deferred", that they acknowledge that they are working on it, but will go ahead and render a deciosion on other claims, such as maybe a Vets claim for PTSD. I think this is to avoid a CUE. That is, if they dont say anything about the Vets TDIU claim, in the above example, they are committing CUE by failing to consider ALL the evidence and claims before rendering a decision. However, by using the word "deferred", they are saying, well, we considered the VEts claim for TDIU, and decided that we are lacking all the evidence to make a decision at this time. This may actually be good for the Vet..that is, he can go ahead and get his decison on PTSD, and possibly some money, and can still look forward to the chance that he may get TDIU later. JMHO

Carlie.. You may be right about "unadjuticated claims" failing to meet the Cue standard, but I seem to recall reading otherwise. If you are aware of a precedential case where a Veteran was denied CUE on an unadjuticated claim, it would be good if you could post it. I am just not that great of a researcher as you, and in the CUE regs, I dont think it specifies that unadjuticated claims dont qualify. In fact, I thought a violation of any regulation (except for VCAA's DTA, as Berta pointed out) would at least be eligible for CUE, that is, if the case met the other requirements for CUE..such as it having to be a "glaring error". I would think the VA violation of any regulations would be CUE, but it does have to be MATERIAL, and effect the outcome. I will be happy to "back off" of my position that an unadjuticated claim is not CUE, if you cite a decision or reg so demonstrating it. I can not remember, but I think it is a precedential case that specifies the VA has to consider ALL the evidence and all claims, before rendering a decision. Therefore, if the VA does not even consider a Veterans claim for CFS, it would be in violation, providing, of course, the Veteran had evidence of applying for CFS prior to a decision.

Correction: VCS stands for "Veterans for Common Sense", a pro Veteran group, who is apparently representing Veterans in this lawsuit. In this context, VCS has nothing to do with "Veterans Canteen Service", which is basically a company that operates stores in VA hospitals. I am not even sure if there still is a Veterans Canteen Service, I think they may have changed their name, or at least they have at my local VA hospital. The store in my local hospital is aafes...Armed Forces Exchange Service..but was probably occupied previously by Veterans Canteen Service. Some Vets still refer to the little stores in VA hospitals as a "Canteen".

Cruinthe Altho I am not one of those "super searchers" of cases and regs, I think you should file a Cue based on the fact that the VA did not adjucate your claim for 'Chronic Fatigue" Syndrome back in 1993, as follows. Berta is right..don't Cue it on the basis of "Duty to Assist" (DTA) as that will be denied. I think I can quote this almost word for word. Basically, the VA must consider all claims, and give a liberal interpretation to the Veterans filings. (They cant tell you that you had to use the words, "Chronic Fatigue SYNDROME" because "Chronic Fatigue" is sufficient.) If the VA failed to consider your claim for CFS, then that is CUE error. The VA is required to review ALL the evidence, so if they never even bothered to process your CFS, claim, then that is Cue, because they did NOT consider all the evidence. Here is how I would handle it. If you have NOT already been awarded disability for CFS, then file a claim for it now, but be sure to mention that you originally filed in 1993, but have not heard anything and you are checking on the status of the 1993 claim. If you have been awarded CFS, within the past 12 months, but at an effective date later than 1993, then file a Nod on the decision, protesting the effective date. If you have been awarded CFS w an effective date later than 1993, but that decision was more than a year ago, then file a CUE nod of the decision stating that the VA erred in its failure to consider you for CFS in 1993, so that should be your effective date.

Having served under Admiral Zumwalt, he was famous for his "Z-grams". There wont be any more Z grams, but "Z" has left his legacy. Hopefully, it will be good for AO victims. Read the story. http://vnvets.blogspot.com/2010/01/all-han...Yahoo!+Mail

I would agree completely, adding that someone PLEASE record this show, and if possible post it on you tube and put the link on here for the Veterans who miss the show but need to know what it says.

I think that deadline is bogus and will never be upheld by the courts. I think it is, however, a clever way the VA manipulates the system to make Veterans THINK they passed the deadline, so they dont appeal. Here is why. The VA did something illegal..they shredded claims. It was just as illegal on Nov. 18, 2009 as it was in 2002. There is no regulation that made it legal for the VA to shred Veterans claims for any period of time. The only thing that might be an issue is do you qualify for "Special Handling" of your claim? That is if you had shredded documents dated during this special handling period that ended Nov. 17, 2009, the VA promises to give your case "special handling". What does "special handling" even mean? Does it mean your claim will go through faster? Does it mean it will be automatically approved? I would say the answer is no to both of those questions. When Dr. Peake issued the fast letter, 08-41, he promised the "benefit of the doubt" for Veterans, accountability for VA staff. Veterans already have the "benefit of the doubt" written into the regulations! I do think that if you made the deadline, you may have been entitled to a free "sucker punch" at the VA. Here is a hypothetical example: You told your doctor you were unemployed due to PTSD in 2002. The doc put it in your files. In 2003, you file a formal claim for TDIU, and it gets shredded. You may have a copy of it, you may not. If you have a copy, send it to them, and your effective date should be 2002, the date of your informal claim. If you dont have a copy, "special handling" procedures may allow you to try to recreate the form today, as if it were submitted in 2003. (That is the sucker punch..) It is probably meaningless and irrelevant because the medical record establishes an effective date, tho it is possible that a Veteran achieve a more favorable outcome due to "special handling" mostly because the VA want this bad publicity surrounding the "shredding incident" to go away. The bottom line: Dr. Peak's Fast letter is meaningless lip service, and it is going to be "business as usual" at the VA...it is merely going to be harder for them to shred your critical evidence in the future, so the VA is just going to have to go back to their usual way of hiding your evidence in drawers, unused rooms, etc and just wait until you die before they throw it away. Go ahead and persue your claim as if you had not missed the deadline, and let the VA TRY to tell the BVA judge that you dont qualify because your shredded information was resubmitted after the expiration of special handling procedures (I would love to see them try that...they will get even more bad publicity out of that, and it will dig up skeletons in the closet that the VA wants to remain buried) ...then take it to the CAVC and you will win because there is no regulations supporting that VA position..a fast letter is NOT a regulation. Congress makes regulations, not the Secretary of the VA. The courts are required to implement and interpret congresses regulations, not VA fast letters.

Here is the story, pretty much an editorial, but he seems to have hit it about right: http://www.trib.com/news/opinion/mailbag/a...57d75e20a2.html

Captain Wow..this sounds like a "catch 22" if I have ever heard of one. The Veteran needs a Nexus statement from his doctor, but the doc is not required to give any such statement. I may be missing something but this sounds like an easy way for the VA to get out of paying. Even tho the Vet got hurt in the military, the doctor does not have to say that..he just has to say the Vet is suffering from...condition, and he cant attest to where the Vet got his medical condition. Fortunately, I got a "pro Vet" doc who gave me a nexus statement, that was favorable, and I ultimately won my claim, even tho it took 7 years. I happen to know a little something about workmens comp, tho I will NOT reveal my source. Typically lawyers get to know the "claimant favorable" doctors..and they direct their clients to see THIS OR THAT doc. The lawyers do not want the claimant to really tell anyone that the lawyer suggested they see Dr. X. The lawyers know that evidence wins claims, and the some docs will offer more client favorable evidence than other doctors. In a nutshell, if you want a favorable outcome on your claim, then it is best to go to a doctor who tends to write things in the medical report that are favorable to the Veteran. Dr. Bash, for example, is well known to write favorable reports for Vetrans..(IMO's and IME's). I dont know what you would have to do to make this happen. Perhaps you would need to move to another VA, if you ran out of docs, that is, there are no docs at your VA that are "Veteran friendly". Perhaps u need to go to a nearby town for medical care, or even pay for an IMO or IME. Or, maybe u need to go "doctor shopping". I do not recommend anyone lie or commit any sort of fraud..ever. However, there is nothing wrong with going to a doctor who is "pro Veteran". I think all docs should be Pro Veteran, but I know that is not the case. There arent ANY experienced VA lawyers in my town, and it is a fairly large city with probably several dozen social security disability lawyers.

I wont argue which is more complicated..the tax laws or VA claims because I think you could make a case for either one. However, the VA does not fare well against the social security disability system either, as more SS claims are processed faster than VA. A better comparison might be unemployment benefits. In at least my state, the state realizes that if you are unemployed, you really need a check fast, and they usually get them out in just 2-4 weeks or so. Later, if they think maybe you werent eligible for unemployement after all (say if you quit), then they can come back on you. Veterans, too, when applying for benefits, need the money in a few weeks, but often that drags on to years..in my case 7 years. If they made unemployed people wait 7 years for their first unemployment check, somebody is going to go down to the unemployment office with a gun. By the way, in my humble opinion it is not a matter of if, but when a Veteran gets mad enough at this tremendously unreasonable waiting period and goes to a VA office with a gun. I think it is just a matter of time. I predict The VA is going to make one too many disturbed PTSD combat trained Veterans just too mad by just making him wait far too long for his benefits, and he is going to "snap" and it wont be pretty. A combat trained PTSD angry Veteran could make the 12 people shooting a couple of months ago seem like a church bazaar yard sale. If I remember right, Timothy McVeigh was a combat trained Vet that blew up the Oklahoma City building. Do we need another "Oklahoma City" type bombing at a Regional Office for the VA to realize there are Vets who wont put up with a 7 year wait on benefits and actually DO SOMETHING about a 7 year wait on benefits? When I lived in Colorado, I knew of a PTSD Vet who would "go off" and start shooting. He lived in the country, so it didnt matter that much unless you were an animal. I was a friend of this Vets friend. We went to visit him and he was shooting at something..he didnt point the gun at us, but I am just saying that the VA can make the wrong guy just too mad. My 7 year wait for benefits is not all that unusual or even all that long by VA standards. How many people do you think would still be working if their employer made them wait 7 years to "process" their paycheck? Yes, I do believe in "justice" but the present system is not justice. The VA has a "solution" to Veterans who have waited 10 years for their benefits: Make them wait some more, while the VA Central Office "checks" it several more times to ensure we are not overpaying the Veteran. However, the courts have declared that to be illegal, fortunately.