Berta

Yeah, if a valid CUE gets to someone who knows what they are doing it should be awarded. During the ridicucous 8 years my SMC CUE sat at my RO, after they tried to make up a regulation to deny me, they then said the CUE had gone to a specialist- they dont have any 'specialists'. The Philadelphia Nehmer VARO awarded it in a heartbeat. Pacman you could always file a complaint with IRIS. The complaint button is a pop down. A complaint I filed years ago got me a double DRO review. In those days a double DRO review had to be done by a different DRO. I got the same DRO. I was trying to get my IMOs into the record but my vet rep in the RO building, who said he would personally present the IMOs to the DRO called me up and told me the DRO told him she still could not read the IMOs. He said he did get another posthumous C & P exam set for my dead husband,like it was a big deal that he did that, but I said if the DR0 cant read my IMOs, written in simple English with an excellent medical rationale,how the heck can she read a new C & P exam result ?....no answer. I dont know why they fight some of us so hard.They usually end up having to pay us anyhow, if our claims are valid. The rep also told me that my files at the RO had 1151 written all over them. I dont know why-I only had one 1151 claim.

Many here have filed CUE on past unappealed decisions.Most CUEs are filed on past unappelled decisions, however a CUE can be filed within days of getting a decision, and the regulations on that are in the CUE forum. My SMC CUE was awarded in my Nehmer AO IHD award, 2012 I think., but I filed it on a 1998 award letter that i did not appeal. My Vet rep seemed intersted in the fact that I told him they did not award SMC and should have, due to the rating sheet , but he said that was because Section 1151 claims are "different" then regular claims, in respect to SMC .He was wrong . If a vet has 100% SC P & T and also a section 1151 awarded rating of 60 % or more they are eligible for SMC consideration by law. If a vet has a TDIU and then gets an additional disability- that VA caused ( Section 1151) and the 1151 made him or her totally housebound or was rated at 60 % or more, the veteran should get SMC. Here is a beauty of a recent CUE award.: "ORDER The portion of the July 30, 2021 Board of Veterans' Appeals (Board) decision related to the issue of entitlement to an effective date of July 20, 2001 for the award of service connection for fibromyalgia, on the basis of clear and unmistakable error (CUE), is vacated. Entitlement to an effective date of November 3, 2001, for the award of service connection for fibromyalgia, on the basis of CUE, is granted. FINDINGS OF FACT 1. The July 30, 2021 Board decision granted entitlement to an effective date of July 20, 2001 for the award of service connection for fibromyalgia on the basis of CUE. 2. The Veteran separated from active service on November 2, 2001. 3. The effective date for a grant of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The Veteran has identified a June 2003 rating decision in which he alleges CUE and a specific error or theory as to why there is CUE in that rating decision." Nice!!!!! DOCKET NO. 18-38 767 DATE: August 12, 2021 Based on a CUE in a 2003 decision. The veteran's EED is the day after his discharge November 3 2021 ecuse he filed within one year of his separation from service. Like you did!!! I dont know what the veterans rating will be for the fibromyalgia CUE but I do know they owe him retro back to November 2003 -18 YEARS !!!!! Nothing is impossible. A CUE must be outcome determinative- in VA legalize they say the CUE manifested a outcome that was detrimental to the veteran. What all that means is that a veteran or their surviving spouse must show that a legal error they can identify, had occured in a past deision and that error involved an established NSC rating at 10 % or more., and that became a SC rating, so then the VA owes them some CASH. If the NSC rating was "0" that will not produce a valid CUE. If a NSC rating was erroneous at "0" % based on all medical evidence at time of that decision, it is possible that the "0" rating could be product of CUE, if the medical evidence in VA's possession at time of the rating warranted a higher rating. And of course if a SC rating is wrong, that too could possibly be the product of CUE. These are generalizations however because all claims are different. I forgot this AM I mentioned something here in another thread. The VA had not considered my huband's extensive VA psychiatric reords and denied the claim he had pending at death for higher PTSD rating-but as I explained-his shrink wrote to them, and they reversed in a few weeks.They also refused to acnowledge his SSDI solely for PTSD. That could have warranted me to file a CUE because the psychiatric records were in VAs possession and VA never considered them and the Dr. told them with a copy of his summation that he had indeed sent them those records. But no need for CUE with the very fast resolve, due to the Doctor's letter.I brought him the decision the day after I got it.Along with the SSDI award. 30% SC PTSD ( nervous condition in those days)1983 went up to 100% P & T for PTSD, back to November 1991. Nothing is impossible. If the NSC rating on the rating sheet ws "0"

Colvin: https://veteranclaims.net/2009/11/15/vas-use-of-unsubstantiated-medical-conclusions-colvin-v-derwinski/ A friend of mine, in his recent remand got the same wording -as a rater made an unsubstantiated medical opinion in a RO decision. I think his IMO from Dr Bash pointed out that significant error. I cant get access to the BVA web site at all today-they might have buggered it up even more then last week- But I know there are many claims there on remand due to unsubstantiatd medical opinions, by someone at VA who is not qualified to have a medical opinion. In this case the BVA made an unsubstantiated medical opinion. In part: "CCK argued, and the Court agreed, that the Board erred in its decision denying an increased rating for back disability. Specifically the Board relied on its own unsubstantiated medical opinion in an attempt to justify its failure to obtain a clarifying medical opinion addressing the Veteran’s additional functional loss during flare-ups. It also agreed that the Board failed to reconcile its finding of no significant loss of range of motion on flare-ups with the Veteran’s descriptions of difficulty bending and need for breaks from walking. The Court thus vacated the Board’s decision and remanded the matter back to the Board. The Court also ordered the Board to obtain a new medical opinion or explain why such action was not necessary." https://cck-law.com/blog/news-news-bva-denies-claim-epiphysitis-lumbar-spine/ Neither the BVA lawyers nor VARO raters have any medical background that could qualify their medical opinion as " substantial" and they-the raters- have no business trying to deny a claim on the basis of what their medical opinion is. I have no idea what your decision said, as to why someone deided Not to accept a C & P examiner's favorab;e opinion. But I think maybe these raters often do what C & P doctors do- they google a disability in order to find anything from any medical site,abstract or treatice, that will support their opinion and a denial of the claim and then cite it to support their opinion. Many here have had that problem I sure did. A C & P Enocrinologist said a DVD entry in my husband's medical record meant he had denied ever having venereal disease. My husband had VD listed on every single rating sheet- he never denied having it in Vietnam. The C & P doctor referenced Merck. I used Merck a lot in tthose days so I knocked her down on that by Mercks medical Acronym DVD- diabetic vasdular disease. That is why it was hidden in my husband's medical records.They knew he had DMII and tried to cover it up.They failed. If we knew more about the decision we could help more. There are CUE templates here and a CUE can be filed on a past decision or one a claimant got Yesterday. It sounds like a 38 CFR 4.6 CUE and a violation of the precedent circumstances of Colvin. More here on Colvin from Broncovet:

Long long ago I griped to the VA IG regarding the way my RO was handling my claims- I rceived a nice letter from them that aid they do not get into complaints about the claims process. I dont think that hs ever changed. "I requested an EED based on VAMC medical records that were not used in determining my current effective date. I reopened my claim based on 38 CFR 3.156(b) and the regional office scheduled me a C & P exam and then completely ignored their own C & P examiner’s medical opinion that my records proves/proved that I was diagnosed and treated long before my current effective date." This sounds like a very valid CUE. If the VA fails to consider probative evidence they have committed a violation of 38 CFR 4.6- lots of info here on that under a search-it is my favorite regulation! Also the VA is not allowed to impose their medical opinion, when they already hve a medical opinion due to a C & P exam- I will find the regulation on that. 38 CFR 4.6: 4.6 Evaluation of evidence. "The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." https://www.law.cornell.edu/cfr/text/38/4.6

Thanks for that info to help this above veteran: https://www.kushnerandkushnerlaw.com/

https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5751 https://www.regulations.gov/document/VA-2022-VHA-0003-0001 public comments can be made here VA News Release VA seeks feedback to guide new copayment waiver program for Veterans at risk for suicide 01/05/2022 09:17 AM EST In part: "To encourage outpatient mental health care and reduce any potential barriers associated with seeking it, the U.S. Department of Veterans Affairs (VA) is proposing to eliminate copayment requirements for outpatient mental health visits and reduce the copayments for medications dispensed to Veterans who are identified as high risk for suicide by a VA clinician."

I have purchased the VBM from NVLSP since 1991. I also took their Basic Training course in 1997. The VBM is packed full of good information but always contains a lot of info from the prior VBM- this is why- I used to work for lawyers and part of my job was to attach supplements to existing books on civil law. Supplements contain the latest changes to laws in th state of NY. NVLSP only listed one Supplement booklet, it is far better now because although thy repeat what is in the oler version, they incorporate new changes in each annual manual in a very easy way to read the supplements that are incorporated so no need to have to read additional pamphlets, they would have to prepare. Every VBM has a page right away of what is new-and th manuals are full of egal citations and regulations that can support a myraid of claims. In 1995 the VBM had very limited info on FTCA- and still does- they recommend highly that one should never file FTCA without a lawyer ( and also without a strong IMO/IME in most cases) but in 1995 I could not find a single lawyer or IMO doctor who would help me so I did what I do NOT recommend- I did the medical and legal work myself. And I won. But I sure would have rather had a lawyer to pay because the work was difficult and Very time consuming, and I had no support system at all. Then again the Office of General Counsel VA lawyers LOVE evidence and they can read so that made my FTCA the easiest case I ever had with the VA.... once I found out how much of my probative evidence the RO had not sent to them. VACO and OGC was shocked by that as well.

Try some of these lawyers in Florida: https://www.google.com/search?q=ssdi+lawyers+florida&rlz=1C1CHBF_enUS695US695&ei=XpnVYaq_IZWnqtsP6eGs0AY&oq=SSDI+lawyrs+Florida&gs_lcp=Cgdnd3Mtd2l6EAxKBAhBGABKBAhGGABQAFgAYABoAHAAeACAAQCIAQCSAQCYAQA&sclient=gws-wiz&ved=0ahUKEwiq5uub2Jr1AhWVk2oFHekwC2oQ4dUDCA4 Here are some lawyers nationwide who deal with TDIU and SSDI: https://www.google.com/search?q=tdiu+but+denied+for+ssdi+attorneys&rlz=1C1CHBF_enUS695US695&ei=ApnVYf-FB7uiqtsPsty24A0&oq=TDIU+but+denied+for+SSDI+attoneys&gs_lcp=Cgdnd3Mtd2l6EAxKBAhBGABKBAhGGABQAFgAYABoAHAAeACAAQCIAQCSAQCYAQA&sclient=gws-wiz&ved=0ahUKEwj_juLv15r1AhU7kWoFHTKuDdwQ4dUDCA4 I agree with Pacman too-Binder andd Binder ...but as he said you need to act fast because a lawyer might see the need to file ( there is a deadline on this) a formal Reconsideration Request. I had experience with that. My husband had not ben denied SSDI but they used his Section 1151 stroke of 1992 for the SSDI award. He had listed what we believed to be his most disabling diability -PTSD( he was 30% SC for PTSD at that time with a VA claim in for a higher PTSD rating.I prepared a reconsideration request because after I spent a few hours ( SSA Corning allowed me to read their Handbook (it might be online by now) I found what I needed...the SSDI MUST onsider every disability you list on the SSDI application. Bingo! They let me make a few xeroxes of that regulation. I had a valid Legal basis for the Recon Request. SSA called him and tried to talk him out of the reconsideration but I got on the phone and said he would proceed with that. Then we got a NY SSA lawyer but the lawyer would not help us and said the reconsidertion would fail.Like the VA SOP, he didn even want to see ay of the evidence I had collected. Adversity inspires me. I called the lawyer about 3-4 months later and told him he just lost I think about 8 tthousand dollars - maybe it was 6 thousand --the recon brought about 18,000 more retro from SSDI ----long ago-I said my husband had won the recon request. The lawyer was stunned and we had a long talk and he said he would never look at a PTSD SSDI claim the same way again. When my husband died I used the additional SSDI award for PTSD to support his pending claim for PTSD. After a ridiculous battle , for a little less than 3 years,the VA awarded him back to 3 years prior to his death- the last day he was able to work. 100% P & T for SC PTSD. (30 % in his lifetime. The battle involved my RO's usual SOL with my claims and failed to consider all of my husband's psychiatric records from the VA. They also said tthe SSA refused to send them his SSDI info- that was a Big Lie! I learned from main SSA in Baltilore that they had never requested them even though his authorization form was in th C file.I took their initial denial letter to his shrink at the VA and he was angry because he knew the VA had records they did not even consider were from his extensive treatment program of my husband, that included hypnosis,slf hypnosis lessons, extensive therapy, MMPI and 5 other tests, and then two days of extensive additional psychiatric tests to separate his 1151 stroke residuals from his PTSD. He gave me a copy of his summary of the PTSD deeming it as " catastrophic "and sent me a copy of a letter he said he would send to the RO along with his summation and mentioned the fact to the RO that I had shown him the veteran;s SSDI PTSD award.I tthink he sent them a copy of it. A few weeks later the VA awarded the 100% SC for PTSD. We have to be Aggressive in every way on this stuff- whether a SSA matter or a VA situation. It all boils down to one thing however- Documented medical EVIDENCE.

John said: " I do have an emergency fund, but it is still hard because sudden death can leave the spouse in bad shape." You are so right! Three weeks after being discharged from the Buffalo VAMC 21 day Inhouse PTSD program, my husband collapsed in our barn and died as I gave him CPR. SUDDEN Death. Although he had been sufferiing from a stroke, he hd learned how to walk again ( VA told me he never would walk again) and the inhouse program definitely had changed the way he usually dealt with anything, meaning he would have violent outbursts, that raised his HBP, which was one of many things the VA had misdiagnosed. While he was in Buffalo, I managed to tap our rainy day fund for a nice larger TV ( he had visual problems), and I painted two or three rooms to brighten up the house , and also I purchased a portable phone for emergencies, that I could take with me ,when we were in the barn or anywhere near our house. I also spent more than usual stocking up the food pantry because he would come with me to the food store but had become violent while I was driving. His 30% SC check was withdrawn by the VA immediately when they learned of his death and fortunately, he had had the older type of veterans life insurance,but 20 years after his discharge he got a letter advising him to obtain private life insurance- the older VLI had a 20 year end date. He did that right away -1988. His private life insurance proceeds were paid within about 3 weeks- but my point here is that -regardless of monetary problems ( death can become VERY expensive ) a sudden unexpeected death can wreck havoc on a veteran's survivors. Their world changes in an instant. They have to be Very careful of the people who come to their home with condolences, or lots of advice on what a survivor should do next- often advice no one should take, and then there are the few people here and there who think they can take advantage of anyone dealing with sudden grief, particularly if the deceased received VA comp. I had a neighbor who received mail from our life Insurance company by mistake and didnt tell us he got it, butt his daughter called me the same week Rod died, to borrow some money. I was appalled and said where do you think I would get money like that to lend. She said her dad had opened Rod's life insurance letter by mistake so she knew I would get his life insurance. I was in such shock over his death , I had not even called the life insurance company yet. Survivors , as well of a veteran, whether they get a Vet rep or not, should come here for the best advice on any DIC claim they make and on how to filed for accrued benefits by substitution, if the vet had any pending claims when they died. My dead husband never knew his ratings went up to well over 200% SC and SMC with a favorable EED of 3 years prior to his death for the 100% P & T SC PTSD, but that was a battle in every instance, with my RO. I am still in shock, 27 years after his death, and part of that continuous shock is that VA admitted to causing his death. Hopefully S 221 will pass and that will save lives. S 221 grew out of over 20 years of my research that proves the VA will hide their actual malpractice statistics. VA saves lives every day and I truly believe that ,but like many of th RO adjudicators, many VA medical professionals are incompetent and many these days do not even fall under the FTCA. because they technically do not work for the VA,they are federal contractors and they have less malpractice liability via fed contractors, than an actual VA medical employee.

I will try to answer without the whole post. If a DIC claim is filed within one year of a veteran's death and is awarded the EED is the date of the veteran's death. The only exception to tthat iss if it is a Nehmer claim. "DIC Regukations: Eligibility You may be eligible for VA benefits or compensation if you meet these requirements. One of these must be true: You lived with the Veteran or service member without a break until their death, or If you’re separated, you weren’t at fault for the separation And one of these must be true: You married the Veteran or service member within 15 years of their discharge from the period of military service during which the qualifying illness or injury started or got worse, or You were married to the Veteran or service member for at least 1 year, or You had a child with the Veteran or service member Note: If you remarried, you can receive or continue to receive compensation if one of these describes you: You remarried on or after December 16, 2003, and you were 57 years of age or older at the time you remarried, or You remarried on or after January 5, 2021, and you were 55 years of age or older at the time you remarried Evidence You’ll need to provide evidence with your claim showing that one of these descriptions is true for the Veteran or service member. Evidence may include documents like military service records, doctor’s reports, and medical test results. Provide evidence showing that one of these is true: The service member died while on active duty, active duty for training, or inactive-duty training, or The Veteran died from a service-connected illness or injury, or The Veteran didn’t die from a service-connected illness or injury, but was eligible to receive VA compensation for a service-connected disability rated as totally disabling for a certain period of time If the Veteran’s eligibility was due to a rating of totally disabling, they must have had this rating: For at least 10 years before their death, or Since their release from active duty and for at least 5 years immediately before their death, or For at least 1 year before their death if they were a former prisoner of war who died after September 30, 1999 Note: “Totally disabling” means the Veteran’s injuries made it impossible for them to work. As a surviving child As a surviving parent What kind of benefits can I get? If you qualify, you can get tax-free monetary benefits. The amount you receive depends on the type of survivor you are. DIC benefit rates for surviving spouses and children DIC benefits for surviving parents How do I apply for compensation? First you’ll need to fill out an application for benefits. The application you fill out will depend on your survivor status. If you’re the surviving spouse or child of a service member who died while on active duty, your military casualty assistance officer will help you to complete an Application for DIC, Death Pension, and/or Accrued Benefits by a Surviving Spouse or Child (VA Form 21P-534a). The officer will help you mail the form to the correct VA regional office. Download VA Form 21P-534a (PDF) If you’re the surviving spouse or child of a Veteran, fill out an Application for DIC, Death Pension, and/or Accrued Benefits (VA Form 21P-534EZ). Download VA Form 21P-534EZ (PDF) If you’re a surviving parent, fill out an Application for Dependency and Indemnity Compensation by Parent(s) (VA Form 21P-535). Download VA Form 21P-535 (PDF) You can apply for this benefit in any of these ways: Work with an accredited representative. Get help filing your claim Use the direct upload tool through AccessVA to upload your form online. Go to AccessVA to use direct upload Mail your form to this address: Department of Veterans Affairs Pension Intake Center PO Box 5365 Janesville, WI 53547-5365 Go to a VA regional office and get help from a VA employee. Find a VA regional office near you Should I submit an intent to file form? You may want to submit an intent to file form before you apply for DIC benefits. This can give you the time you need to gather your evidence while avoiding a later potential start date (also called an effective date). When you notify us of your intent to file, you may be able to get retroactive payments (payments that start at a point in the past). Find out how to submit an intent to file form Other VA benefits for survivors VA Survivors Pension benefit rates Find out if you’re eligible and how to apply for VA pension benefits as a surviving spouse or child of a deceased Veteran with wartime service." https://www.va.gov/disability/dependency-indemnity-compensation/#am-i-eligible-for-va-dic-as-a- The VA always seems to forget DIC under Section 1151. If the VA, by virtue of documented medical evidence,caused the death of a veteran ,the spouse can apply for DIC under Section 1151, 38 USC. There is plenty of info here on 1151 deaths. The cause of death is the same criteria for a FTCA wrongfu death claim-that the VA failed to diagnose and treat properly a condition that caused or substantially contributed to death, and/or any proof whatsoever that the VA failed to provide medical care consistent with the "usual" medical community- meaning that non VA medical professionals would have diagnosed and treated the veteran more appropriately. Independent medical opinions are often the only way to succeed on Section 1151 claims.

I got a email notification on this: "Hi Berta,3grandkids has posted a question, DIC effective date? Regulations? Posted in DIC DIC effective date? Regulations? Hi all, Happy New Year. Well just an update after a long battle. My Marine husband passed away nine years ago at 90% service connected w..." however I cannot find the actual DIC post here.

Good advice here but I have a different take on this: You staed: New User Review 6 "Posted December 29, 2021 I put in a claim back in 2009, and it was denied, due to no diagnosis of the disease in service. I didn't appeal or follow up on the claim. In 2020 I found new "material evidence" for the disease during my service. The VA approved my claim, that was denied originally and granted me 20% disability for it. Should by effective date of the claim be when I first claimed the disability back in 2009 and not 2020? I put the claim in within 1 year of my separation of service. Both the VA and the higher level reviewed denied the reopen claim." I would file CUE on the 2009 decision and also on the 2020 decision- IF the disability you had was rated at least at 10% when you filed it. " I put the claim in within 1 year of my separation of service." If the CUE succeeds the day after your discharge would be the EED. I would CUE the 2020 first, and then file the separate CUE on the 2009 decision.* A re-opened claim does not mean the proper retro will be applied. *But then again, I am a Cuerino and there is not really enough info here yet to really know if CUE would apply, as it rests on a ratable percentage in the older decision. Have you posted those two decisions here anywhere? If not can you scan and post them here? we also need to see the evidence list they used and the rating sheet. Cover your C file #name, address prior to scanning and attaching them here.

This was my evidence: 1.The 1998 rating sheet. (SMC is an "inferred issue" whenever the evidence on a rating sheet warrants it to be considered) 2. Copy of the M21-1MR excerpt that stated that above. 3. a brief copy of how NVLSP in the VBM explained the above regulation. We both have dealt with Buffalo RO and they held onto my SMC CUE claim, without BVA transfer- for 8 years too. They even tried to make up a regulation to discourage me. I filed this as the widow of a veteran, fully entitled to accrued benefits. They stated that since the veteran did not seek SMC in his lifetime, he was not eligible for it. That was a crock of crap.When I asked for the specific regulation on that, of course they could not produce it. My husband was only 30% SC when he died with two claims pending- higher rating for PTSD ( awarded almost 3 years after his death), and Section 1151 claim, awarded in the 1998 decision I Cued- over 3 years after his death. Mr Cue. I need to mention again something to consider. When I filed FTCA for his wrongful death in 1995, I could find NO IMO doctor at all, and at least 20 lawyers here in NY told me I could never succeed.The internet was highly limited in those days. I am inspired by adversity- that helpd me graduate with Honors from AMU- their first civilian graduate. (and first Chapter 35 student)My first Semester there was full of negativity- because my USMC professor was offended by a female civilian enrolled in a war college, until he got my first Thesis. I never got less then an A from him for the next 4 years in the tactical warfare program he controlled. Adversity also inpired me to be able to prepare a FTCA case with no IMO and no lawyer, and I succeeded in settling with the VA . It was the easiest dealings I ever had with VA at that point. .. tht is when I learned of the probative evidence the Buffalo VARO had hidden from the OGC.VA OGC is tough but so am I. So why, when I reopened my claim for direct SC death due to AO DMII ( never diagnosed or treated by VA) was I willing to spend 4 tthouand bucks for 2 IMOs, and even orderd an additional one at about $1,400 due to a remand ( but that forensic firm refunded half of my money because the BVA awarded anyhow before the IMO was done ( I had knocked down a lousy VA C & P opinion BVA ordered myself)---- because I knew the Buffalo adjudicating clowns would again refuse to even read my IMos and, I was in the Military University at the same time, so I was not going to allow them (Buffao VARO)to affect my grades with their inability and unwillingness to readmy evidencem and to continue to argue over established VA case law and regulations. Even with proving a major DTA error,= they made, the BVA agreed but said I had mitigated the damages with my evidence. I know you are not interested in getting an IMO. That's OK because it might not even help your situation-and that is the chance we all take. But the posthumous C & P exams tthey gave my husband were absolutely ridiculous and some other widow might have bought what they were selling, but Not me. This is the hurdle for a valid CUE under SMC: (SMC is an "inferred issue" whenever the evidence on a rating sheet warrants it to be considered) 1. The rating sheet that warrants the CUE 2. Copy of the M21-1MR excerpt that stated that above. My SMC CUE was Finally set for BVA transfer and I knew the BVA would award but a miracle happened- AO IHD regs, and since that CUE had been pending for 8 years, I asked tthe Nehmer Phila VARO to decide it properly it because it would affect my AO IHD claim and was filed long before the SMC CUE was filed. They awarded it. I think readers here get tired of my stories about the way the VA can treat widows. They hope we will get lousy vet reps (mine didnt have a clue)and that we have no idea as to how the regulations can work for us. Beverly Nehmer was represented by NVLSP and her case has positively affected THOUSANDS of AO vets and widows for decades - and it Still does!!!!!!

Unfortunately almost all claims are taking a long time to get properly addressed by the VA. I assume that you already have a TDIU or 100% rating for service connection that would possible put the bladder cancer into the SMC criteria. Have you tried to get a status via IRIS? IRIS is the "Contact Us" link at the main VA web site. Maybe "Peggy" ( what we call the 1-800-827-1000 #)might be abletto tell you more. You might be eligible for a very favorable EED due to Footnote One Nehmer. It is explained here: https://community.hadit.com/topic/85442-nehmer-footnote-one-agent-orange-claims/ And this is more discussion here on Footnote One- most of the veterns here under Nehmer were Footnote One veterans. I was a "should have coded" Footnote one AO widow.I think I found years ago one other Footnote one "should have been coded" decision. However it i a facet of Nehmer that cannot be overlooked. The ratings for AO bladder cancer are in this excellent article by Hill and Ponton, excellent vet lawyers: https://www.hillandponton.com/agent-orange-bladder-cancer/ I am assuming something on one of your past ratings sheets that identified Bladder cancer ith a rating, as "NSC" not service connected, triggered the VA to re open the claim under Nehmer. If so , that means the VARO is doing the right thing on the re opened claim. When you get the decision, you can ask NVLSP to review the retro as they did for many of us here. Not only COVID but this issue caused a delay in claims. It was an important delay and finally Blue Water Navy AO veterans got the proper equity they deserved: https://www.nvlsp.org/news-and-events/press-releases/nvlsp-triumphs-court-orders-va-to-redecide-thousands-of-claims-for-blue-wat

I am dealing with a repair man and cant fnd where you asked this question, this morning. https://community.hadit.com/topic/47459-how-my-cue-succeeded/ As I mentioned, it was an obvious CUE in a 1998 award letter but my former POA said 1151s are different than regular claims and SMC issues. He was wrong. A posthumous award for my husband was 100% P & T for SC PTSD ( up from 30% in his lifetime) The additional 1151 disability (stroke)was rated at 80% in the award letter. 1151 means "as if service connected" for VA rating purposes. 100% plus 60 % or more independent disability equal SMC S. I also provided evidence that he was Housebound. Philadelphia Nehmer VARO awarded under both theories but paid correctly only one SMC S as an accrued award. The CUE was that the VARO had failed to consider SMC,in spite of significant information on the rating sheet that awarded it. That is where most CUEs are found- on rating sheets and also when probative evidence that VA has received, is either not listed on the Evidence list or, it is listed as evidence, but the VA fails to consider it. Violation of 38 CFR 4.6.

It does not come up on the new BVA search feature.

You "Posted 1 hour ago https://community.hadit.com/topic/86550-so-now-the-bva-can-say-the-benefit-of-doubt-isnt-applicable-in-veteran-claims/#comment-516232 Here is the docket No. 21-00 585" That is not a valid docket # and I coudnt ind it anywhere else in your posts. 21 is the year of the Docket and then there are ,after a hyphen, three numbers , another hyphen- then 3 more numbers.

I will try to find it here- but can you give us the BVA docket # again- After the date 21 on the Dockets there are 3 more numbers with a hyphen and then 3 more.

Is anyone here willing to contact the Secretary about the change to the BVA decisions site? Denis.McDonough@va.gov. You can also contact data.gov and complain as well. I sure did. https://catalog.data.gov/dataset/board-of-veterans-appeals-decisions In my email to the Sec I said I would contact the WH Hot Line,if no reply but they did reply that my concerns went to the VBA. (?) I guess I should file an IRIS complaint too- I attribute most of my expertise on VA claims to the years of reading BVA decisions, often every day of the week. It can become very time consuming but then again, sometimes it is the best way to find diagnostic codes used years ago in older decisions, that help many who feel they have a valid CUE on a past VA decision, and the BVA also incorporates, in each decision, the specific precedent USCAVC cases and regulations that were significant to the claim they decided. Their denials and remands are as important as claims they have granted. Also disability criteriae has changed over the years and the older decisions can reflect that, which is an importantt factor too. The other day I put PTSD into the 2021 feature that didnt work this AM. Five PTSD claims popped up for 2021- FIVE ? ridiculous! I feel my ability to be effective here has been severely diminished by the loss of the past BVA decision site. I would appreciate some support here to get the site back to where it was---- perfect ,as it was.....for decades. I did a hadit search for 'Berta BVA' and 1,762 pages popped up- maybe not all containing BVA decisions, but still the BVA site has been the foundation of most of my knowledge, and my right to access the public site effectively is now gone. I feel the change to the site has totally compromised my ability to be an effective advocate. I tried to search for adjustment disorder this AM in the 2021 decisions. I got 6 decisions, all from 2014. I searched here under Brta BVA and 1762 pages popped up. They probably do not all contain BVA info from decisions, but that does not surprise me, that o many pages popped up

Hsve you ever considered getting an Independent medical opinion, done by a doctor who understands your type of disability? Or a strong opinion ,done by a Vocational forensic expert ? Can you give us the docket and citation #s. The BVA decision site has changed and was more messed up then ever this AM when I tried to find your case. I agree it is unusual in the way the BVA stated the denial, but, as you can see here at hadit many many veterans can only get their claims into "Relative Equipoise", (Benefit of doubt) with very strong IMO/IMEs. The CAVC does not accept new evidence but mo remand, the VA would have to consider an IMO/IME. The Federal Gov is closed today due to the weather.

YES!!! That is the Solution!!!!!!! More veterans need to complain! I sure remember the Pheonix situation, and the Fayetteville situation doctor is in jail. I followed that situation very closely. There is no doubt in my mind that one of our former members was a victim of his malpractice . I contacted a lawyer who was at one of the Town Hall hearings on the Fayetteville malpractice, and heard she contacted him as well but she would not file a SF 95. I am sure many did however. VA Doctor sentenced for 20 years for malpractice - VA Disability Compensation Benefits Claims Research Forum - VA Disability Compensation Benefits Forums - HadIt.com Veterans Lots here on Phoenix too Americal Legion Pr On Phoenix - VA Disability Compensation Benefits Claims Research Forum - VA Disability Compensation Benefits Forums - HadIt.com Veterans

Many of us here can relate to this- But the main problem vets have on this site is getting an accurate decision on their VA claims from VARO employes. And of course there is the VA malpractice issue as well. I named many VA doctors in my FTCA case. The final VACO review stated that "multiple deviations from a usual standard of care occurred and "all" of these deviations hastened the veteran's death." I proved one of the two VAMCs involved tried to cover up the malpractice from the other VAMC. I settled with VA for wrongful death, thinking that since the malpractice had been so extensive, from muliple VA doctors, that things would change here at the local VAMC but I was wrong. Anothe patient, a friend of my husband's also within a few months of my filing SF 95 for FTCA, I discovered he had been malpracticed on also at the same VAMC, and I prepared a 1151 claim for him. Within a few months they awarded him 100% P & T for the malpractice. A few years after my husband died, the internet grew and I learned of the mandate VA has had with the National Practitioners Data Bank- the VA was supposed to report who caused any of their FTCA settlements so that these doctors or other medical entities could be put on every states Disciplined doctor's data bank so anyone could look them up to see if they had caused malpractice before. The local doctors I named were moved to other VAMCs and none of them ever were reported to the NPDB. The malpractice happened from 1988 to 1994. When I questioned the VA OGC about this lack of NPDB reporting,of my husband's case that fell completely into the mandate reporting requirements, they gave me a ridiculous excuse. I researched this problem for years finding confirmation from GAO that the practice was still prevalent and VA was still failing to honor the NPDB mandate. I griped to the White House Hot Line 1-855-948-2311 a few years ago and was referred to the Office of Accountability and sent them some of the decades of evidence I had collected. LONG story but this garnered a Bill in the Senate (S 221) that passed unanimously and is still in a medical committee with the House . It will support the need for more oversight if the VA still refuses to honor the NPDB mandate. If the VA starts to honor the mandate in every single applicable case, the bill will save lives as those malpracticing doctors will have to go. But that also means the VA can replace them with federal contractors, who are excempt from the FTCA. Tully's case might well change that I am sure, but still the sad part is that VA saves lives everyday- there are plenty of very well qualified dedicated doctors and nurses etc at every VAMC- but they work side by side with incompetent ones. That also describes the same cause of the problems veterans and their survivors have with the Regional Offices, trying to get their claims resolved properly. There are a few other bills too pending because the VA has been filling their VAMCs with Federal contractors who diagnose and treat veterans and are Except from the NPDB mandate because they are not considered VA employees- Brain Tully's case here at hadit and googleable is a good case of what I mean.His bill was passed as far as I know, to let VA patients know if their doctor works for the VA or is not conidered a VA employee. You can complain to the WH Hot line, or to the VA0IG, or to the Accountability office but you will need documented proof positive that any specifically named VA employee is failing to properly care for and respect veterans. And you will need witnesses I am sure, as well to verify your charges. I saw the Office of Accountability in action here at a local VAMC a few years ago,because of an unusual situation I cannot reveal. The employee quit before they could get fired. The VA handbook changed significantly after the former President opened the Office of Accountability- as, before that, it was VERY difficult to fire anyone employed by the VA. The former employee I mentioned called me to tell me what he was going through and he said he never received the new Employees Handbook. He however was one of a few others I knew who worked for VA , and he had been in trouble before, and I sent them all a link to it but I know they all got it anyhow from the VA. We here have probably all been victimized by careless VA employees at every level of the VA. But often VA employees themselves will file complaints against thir co workers, and even patients at VAMCs. have done that as well.

Yes, there are probably many who are out of retro on the Footnote One criteria. Still, it pays, whatever a vet rep might say, to make sure all of your disabilitis, even those at NSC, are documented on rating sheets. The only exception tothis is if, as NVLSP lawyer Richard Spataro stated in his email to me , if th disability "should have been coded". Rick Spataro, Head Nehmer lawyer of NVLSP, explained Footnote One to me this way in email as soon as the Regulations were being prepared for the 3 new AO presumptives in 2010: “As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim. Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. “ I found only two other "should have been coded" BVA decision years ago and mine was a "should have been coded." as a successful AO IHD claim, granted by the Philadelphia VARO. This vet did get a better EED and it appears he was a "should have been coded " Nehmer veteran but the decision does not state tthat specifically. https://www.va.gov/vetapp19/files1/19107415.txt The new BVA deciion site is useless as to narrowing down the search terms, but I did find this case there- and feel perhap this statement by the BVA could warrant a CUE for any veterans whose AO disability( NSC) Should have been coded: "The footnote says, in effect, that prior VA decisions are deemed to have denied SC for any condition that paragraph 46.02 of the M21-1 (in 1991) required to be coded in the rating decision. At that time, the M21-1 said that the rating decision should identify and "code" each diagnosis shown by medical records even if not claimed. For example, if the VA RO in 1990 denied a claim for service connection for arthritis and the Veteran's medical records showed a diagnosis of ischemic heart disease, the Manual required VA to list the heart disease as a non-service connected in the rating decision. Under the Nehmer Training Guide, the RO decision is treated as having denied a claim for ischemic heart disease even if it did not code the disability as the Manual required." That bears repeating -" At that time, the M21-1 said that the rating decision should identify and "code" each diagnosis shown by medical records even if not claimed." https://www.va.gov/vetapp21/Files8/A21013050.txt They mean the 1991 M21-1. This is why the VA had to award my AO IHD claim. VA medical records back to 1988 showed he had been diagnosed with a sinus infection. He had collapsed while at work at the VAMC nd was rushed to the ER. After his sudden death I obtained his medical records and was able to prove there had been a heart attack that day,not a sinus infection. The EKG they did was clearly abnormal. I felt my EED should have been August 1988 ( the date of the actual VA ER Certificate) but the Nehmer lawyer said it was October 1988 because that is the first mention of heart disease in a C & P exam. This had been a C & P exam for PTSD. I was stunned because the C & P results and exam never showed up with the medical records or in his C file, and it was the only time any VA doctor had mentioned the heart disease. The exam however caused the VA to propose to reduce his 30% SC for PTSD to10%.He got that letter on Christmas Eve 1988. I prepared a scathing NOD using the regulations they used to reduce, against THEM and the VARO dropped the idea and restored the 30%. Your medical records could well reveal that you had a NSC disability that "shoul have been coded" and "identified" based on the BVA statement above. I would file a CUE on the Nehmer award you got -if I were you. It appears to be violations of 38 CFR 4.6 as well as violation of the Nehmer Court Order and the M21-1 requirement to identify and code properly any disability they know you have.

Absolutely! Secondarys should be claimed! Great advice here!

I just received this email from the Secretary's office: "Ms. Simmons The Secretary has received your email dated December 28, 2021. He has forwarded your inquiry to VBA leadership for review. Thank you for your communication. **Please note that this email address does not accept replies. Office of the Secretary Department of Veterans Affairs 810 Vermont Ave NW Washington DC 20420 " ----------------------------------------------------- I will let you all know if there is any resolve.