Cue During An Appeal

[hurryupnwait]

Can I file a CUE claim and still work on my appeal at AMC? I reopened a claim that was denied in 1973 and was not appealed. That claim has some CUE issues.

This claim is at AMC. Can I work on getting this appeal settled and have a CUE on the same claim.

This gentleman submitted a post on this subject. Here is his post:

Jay Johnson

Oct 21 2005, 11:22 AM

I was recently told by my contact in the Seattle RO (part of team 1?) to file a CUE based on the regulations broken in my wife's recent decision. When I posted the CUE(s) I had written to Hadit I was told that I could not file CUE until we had exhausted her appeals process, so I decided to hold off. Today, I spoke with my contact again and he clarified the process for me....he said not only could I file a CUE right now (just putting in for DRO as well), but both my DRO and CUE will be handled seperately (IE - I can appeal the CUE decision AND appeal the DRO decision if both turn out to be unfavorable). He also said that the CUE goes directly to the "coach of the appeals team" and shouldn't take longer then a few months AND this can be done WHILE my appeal is in for DRO. If I do not agree with the "coach of appeals" decision I can appeal it to the BVA along with any appeal I may have for the pending DRO.

Now, this is one man's opinion on the matter and I am just starting the process, but this individual works with the rating teams (he puts together all of your evidence, claims, etc and personally brings them to the raters). So, I will try to give updates to the case to see if this is, indeed, the truth.

P.S. - He isn't the first person in the RO to tell me I could CUE whenever I wanted....apparently, finality isn't whether you have exhauste appeals, it's whether or not the RO has made a written final decision (which is just the beginning of the appeals process). If this turns out to be correct we could go after the RO on two fronts at once....cross your fingers:-)

Edited May 7, 2007 by hurryupnwait

[vaf]

Thanks, I just sent an IRIS inquiry through the VA website to ask about this again. I wonder if its up to the VARO's discretion as to whether they work claims out of temporary files, if there's anything in M21-1 about this. I'll have to look.

[hurryupnwait]

hurryupnwait,

Do you ever call the AMC? What have they told you about your claim? I believe that you have mentioned that it was in the overflow.

Is this correct? If I am calculating correctly, you file will soon be with the AMC for two years.

I just don't believe that they could possibly have a back load of that far back.

It seems like the BVA has remanded a lot of claims, for I notice on the BVA web site that they are working way into 2007.

I only ask, as I am at the AMC also and it appears that I am getting no where also. Overflow also.

Thanks bunches!

Josephine

Josephine

Yes, you calculated right, next month will be my 2 year anniversary date with AMC.

I use to call about once a week on my claim at AMC then I got a letter asking me to stop calling that they were doing what they could to process my claim.

After waiting about a month, I contacted my Congressman, Bill Thomas, and they made an inquiry on my claim, 2 weeks later, I got a letter with a appointment for C&P exam. Then Bill Thomas retired and now we have a first term Congressman that entered office in Jan. I have been working with his office but things seem to have slowed down.

My claim went to the ratings board in March and it was sent back for further development for something they already have but did not read.

The C&P examiner made the comment that my file was very lage and he showed me the file. It was over two inches thick. Many times I think that these AMC raters, under pressure to get claims settled, see my file and just look for something wrong so they can send it back for further development, then they do not have to read the whole thing, which will take time. When it comes back to be rated, it may not go back to the same rater.

I m not sure what my next step will be. Possibly file a CUE and continue with the appeal.

I thought about getting a hearing with the BVA and divulge everything to them.

Paul

Edited May 7, 2007 by hurryupnwait

[Josephine]

hurryupnwait,

I call the AMC about twiced a week now. They haven't sent me a letter, maybe, because they know that it would not stop me from calling.

I wouldn't call so much, if I could believe what they were saying to me. I can't. I have never received the same answer twiced. Each person sees a different thing on the computer and to my knowledge, they are susposed to be looking at the same information.

It seems sort of strange to me that your file went back to development after the C&P. Strange as the same thing happened to me as my remand stated for my claim to go back to the two psychiarist that did my last C&P to reconcile their difference.

Of course they didn't comply to the remand, but just as soon as my file came back, the rater sent it to development.

I kept on until the supervisor came on the phone and told me that the rater needed my personnel records. I ask what happened to the copy that I sent to them in May and to which Pearl one the counslors acknowledged that she had them to log in.

Next, they wanted a letter from the archives stating, there were no more medical records in the archives for me. The technician sent me another copy of the personnel records and a letter stating that they were no more medical records for me. This was in July. I sent this to the AMC and Candice acknowledged the personnel records and stated she logged them in.

In November, the rater sent my claim back to development and said that she needed my personnel records. This time the archives stated that my personnel records were misplaced.

The AMC told me of this in late December, so I ask the supervisor, how about me just faxing you another copy of the personnel records and she said," Do you have a copy?" Sure I did , for I woud never sent any of them the originals of anything.

Next, my file had to go back for the BVA to see what happened to the two lost sets of personnel records.

This was resolved.

Next, a transmittal had been sent to the R.O to notify them that I had placed a waiver for to let them know that the AMC would be rating my file.

As of April 25th, I am told that all flags have been removed and now the rater can rate my claim.

Is this true, I have no ideal.

Your claim should not be there two years. I would be calling James and Lidel every day until I was told what papers or papers that development needs.

The Supervisor for Development is Ms. Dunlap.

She is the Supervisor that I personally faxed the personnel records to and Lidel Gingle logged them in.

I felt that I had the right to know what they were looking for. You are right, I am sure that Development is looking for a paper that they already have.

You should call and ask to speak to Ms. Dunlap, the Supervisor of Development and ask her exactly what they need to rate and complete your file and then fax it personally to her for her to log this information into your file.

I hope this helps you some.

Josephine

Edited May 8, 2007 by Josephine

[Jay Johnson]

I have another post around here that clears this up a bit. What I know is this - I have talked directly to team 1 and team 2 in the Seattle RO and both have said that one can file CUE at ANY point regardless of your claim status as long as the RO has made a final decision (IE - your initial decision; not a finally adjudicated one). The mistake some people make is in that terminology. A claim can be "final" without being "finally adjudicated" (IE - all appeals exhausted) and a CUE only states that a decision needs to be "final". I even posted the regs dealing with "final" and "finally adjudicated" along with the CUE debate, but many here still say it cannot be done (despite doing it myself).

In my wife's case, the CUE was never won, nor lost, because I made a call to the director of the RO and he called the review guy who, in turn, called my wife that day and "fixed" the situation (which NEVER happens mind you). In this phone call to her he basically agreed with everything in my 2 CUEs and apologized for the RO's mishandling of her case.

So, her CUEs were never fully looked into, but they were accepted and they were set to be reviewed SEPARATELY from her appeal. It was made quite clear that the CUE and the appeal were two totally separate issues; the appeal was an issues of medical opinion and the CUE was a violation of VA regulation. Neither had anything to do with the other and they are reviewed by different people.

I'm still unfamiliar with the jargon I was given....all I know is that team 1 made the initial decision on her claim and team 2 was the one reviewing the appeal (separate groups in separate offices). The CUE was being reviewed by someone totally different outside of team 1 & 2. If that makes sense to you than great:-) But just getting through to those people was a bloody miracle on my end (and what ultimately won the case mind you).

Edited May 8, 2007 by Jay Johnson

[jbasser]

Jay you are correct about a final decision. I have a CUE at the dro level now and I am sure I will win. In your wifes case, The VA called the cue on themselves after you brought it to their attention.

[hurryupnwait]

hurryupnwait,

I call the AMC about twiced a week now. They haven't sent me a letter, maybe, because they know that it would not stop me from calling.

I wouldn't call so much, if I could believe what they were saying to me. I can't. I have never received the same answer twiced. Each person sees a different thing on the computer and to my knowledge, they are susposed to be looking at the same information. Same for me.

It seems sort of strange to me that your file went back to development after the C&P. Strange as the same thing happened to me as my remand stated for my claim to go back to the two psychiarist that did my last C&P to reconcile their difference. Yeppss Strange

Of course they didn't comply to the remand, but just as soon as my file came back, the rater sent it to development.

I kept on until the supervisor came on the phone and told me that the rater needed my personnel records. I ask what happened to the copy that I sent to them in May and to which Pearl one the counslors acknowledged that she had them to log in.

Next, they wanted a letter from the archives stating, there were no more medical records in the archives for me. The technician sent me another copy of the personnel records and a letter stating that they were no more medical records for me. This was in July. I sent this to the AMC and Candice acknowledged the personnel records and stated she logged them in.

In November, the rater sent my claim back to development and said that she needed my personnel records. This time the archives stated that my personnel records were misplaced.

The AMC told me of this in late December, so I ask the supervisor, how about me just faxing you another copy of the personnel records and she said," Do you have a copy?" Sure I did , for I woud never sent any of them the originals of anything.

Next, my file had to go back for the BVA to see what happened to the two lost sets of personnel records.

This was resolved.

Next, a transmittal had been sent to the R.O to notify them that I had placed a waiver for to let them know that the AMC would be rating my file.

As of April 25th, I am told that all flags have been removed and now the rater can rate my claim. How big is your C file? A large c file may be daunting for a rater under pressure to get files cleared off his desk. My file is large and many times I think a rater sends it back to determination because he/she does not want to deal with it. If this is the case, this is where a lawyer may be helpful.

Is this true, I have no ideal.

Your claim should not be there two years. I would be calling James and Lidel every day until I was told what papers or papers that development needs.

The Supervisor for Development is Ms. Dunlap. I will call her. Thanks so much

She is the Supervisor that I personally faxed the personnel records to and Lidel Gingle logged them in.

I felt that I had the right to know what they were looking for. You are right, I am sure that Development is looking for a paper that they already have.

You should call and ask to speak to Ms. Dunlap, the Supervisor of Development and ask her exactly what they need to rate and complete your file and then fax it personally to her for her to log this information into your file.

I hope this helps you some.

Josephine