Cues And Widows

[free_spirit_etc]

I have read quite a few CUE claims filed by widows - where they are alledging an earlier denial was based on a CUE. Usually they are seeking to have the veteran declated totally disabled at an earlier date.

The BVA dismisses the cases based on Haines vs. West - that a veteran's claim does not survive his / her death.

But in the case of a widow filing a CUE claim that was NOT filed by the veteran -they BVA claims that the widow can not file the CUE because she was not a "party" to the orginal denial.

However in their Response in Opposition to the Supreme Court in Haines vs. West they state :

"Instead, she merely contends that if a CUE claim does not survive the claimant's death, an erroneous decision may stand, "subvert[ing] systemic fairness, thereby undermining the credibility and reliability of the entire adjudication process." Pet. 9. In fact, however, the allegedly erroneous determination was not forever insulated from review. Pursuant to 38 U.S.C. 5121 (Supp. II 1996), petitioner herself was entitled to file a timely application for accrued benefits, claiming that the earlier denial of benefits was based on clear and unmistakable error.1 See, e.g., Shields v. Brown, 8 Vet. App. 346 (1995)."

SO in that - they are saying it is appropriate for the widow to file for accrued benefits BASED on a CUE.

Is this a catch-22 here? Or are they just denying the CUE claims filed by widows AFTER the Vets death because they are filing them properly?

Hoppy was talking about their red herring arguments. And I can kind of see them in some of these decisions.

I get aggravated when the BVA "discusses" things and says something like:

The appellant didn't claim such and such (so then you wonder if they HAD claimed such and such - would they have won?) But then the BVA sometimes goes into great depth DISCUSSING what the person did NOT claim.

"However, even if they would have claimed such and such - that wouldn't matter..because blah blah blah.."

I am thinking! ACK! People are DYING waiting to get a spot on the docket and here they are going into hypothetical details about something the person didn't even claim.

Free

[free_spirit_etc]

http://www.va.gov/vetapp06/files2/0609605.txt

Here is another case where they denied the CUE claim in regards to accrued benefits

The appellant was granted service connection for the

veteran's cause of death in April 1998. Her claim for

accrued benefits was denied in May 1998, and a timely notice

of disagreement was not filed. Accordingly, that

determination became final.

In June 2004, the appellant, through her representative,

filed a claim for CUE with the December 26, 1996, RO rating

decision, which granted a 10 percent evaluation for the

veteran's service-connected COPD. Except for a claim for

death benefits, a surviving spouse has no authority to

collaterally attack a rating decision made during the

veteran's lifetime unless the veteran himself had so

challenged that decision and it was pending at his death.

The record reflects that the appellant filed the CUE claim in

June 2004. However, the appellant lacks standing to pursue a

claim of CUE in the prior disability compensation claim of

the veteran because there was no CUE claim pending at the

time of the veteran's death. Id.

So I am wondering why they told the Supreme Court that Pursuant to 38 U.S.C. 5121 (Supp. II 1996), petitioner herself was entitled to file a timely application for accrued benefits, claiming that the earlier denial of benefits was based on clear and unmistakable error.1 See, e.g., Shields v. Brown, 8 Vet. App. 346 (1995)."

Free

[Berta]

I have 2 CUE claims that I filed after the veterans death.

However- these CUEs were based on decisions that I- as the established claimant- had been awarded yet in which the VA committed legal error.

Meaning I was a "Party' to the unappealed decision that I CUED since I received the decisions.

In Shields V Brown the widow had standing because the issue of accrued benefits is solely a survivor's issue.

A CUE claim of the deceased ciuld possibly be re-opened by the widow but the CUE occurred in a decision that the veteran received-therefore I agree that there would be no basis for the widow to claim CUE.

In my case- the VA sent me 2 award letters. They stated that the veteran was not eligible for SMC "consideration".

My vet rep at the time 1998-mentioned 'this is funny' as he read the awards-and told me he was surprised that VARO had avoided the SMC issue.

He just shrugged his shoulders and discussed the award.

What a dope I was-never asking him what he meant about the decision was "funny" and he should have given me the advise the file a NOD regarding the CUE issue.

He might have caused me monetary damages.

Upon receipt of my CUE on this in 2004 the VA stated that the veteran" was not eligible for SMC consideration under any circumstances."

I fought back with the regs.

38 CFR, M21-1 and an Office of General Counsel precedental opinion all clearly state that a veterans with 100% SC will be considered for SMC-

if they have additional independent disabilties under Section 1151 or direct SC.

Rod was 100% SC PTSD and over 100% in CVA, heart disease, and misdiagnosed diabetes-all under Sec 1151.

100%SC + 100% Sec 1151 = SMC.

I could CUE this because I was the claimant on the decisions that denied him SMC.

Also I squeezed the RO's statement out of them too- as to him not being eligible- so that was more evidence I used for the CUE.

There are 2 CUES and they have been with a rater for some time now.

A widow can CUE an unappealed final decision that the widow herself received.

The VA tried to deny the main CUE saying that Rod had not filed a Section 1151 in his lifetime-I was so angry I responded the "hell he didnt and it is in his c file and this claim was at the rating board when we called VA the AM of his death.It was there with his claim for higher PTSD rating and the former director of the RO sent me copy of my c file and it was right in it.

When VACO reviewed the claim (I filed an administrative review with them) they also had copy of his claim and their report was almost word for word what he stated they malpracticed on.

Rod had also sent the claim to whoever ran the VA at the time (Hershel Gober?)and to President Clinton because the VA had already messed up his other claim so he wanted to make sure if RO said they didnt get it (I have the proof of mailing) someone in our Gov would have it.

I also reminded VA that my DIC was based on a re-open of the Sec 1151 claim he had filed.

I forgot the question-but in any event-

a widow can successfully claim DIC under 1318 or any other way- but the decision is based on evidence in the c file at time of death.

Widows have a difficult time with the VA-that makes us no different then the thousands of men and women who served that get a lot of VA ola Crapola.

Vet reps often wish we didnt exist because they dont know the DIC regs.

It is Medical Evidence that wins a DIC claim.

If the medical evidence in the c file doesn't clearly support a DIC award the widow needs an independent medical opinion.

When the VA got my Chap 35 app or something they asked what my intentions were as to my schooling. I told them I had chosen a military college because the VA is a battleground and I as a claimant and advocate have to fight on that battleground.

A claim has to be approached like a battle plan-

a vet or widow needs to look for the landmines (whatever they can use to go against the claim) and then make sure their rear is covered.

We have to assess the enemy's intelligence and then use it against them (38 CFR)

then we have to surround the enemy- with all the evidence we possibly can get.

Past BVA and CAVC decisions are good battle ' lessons learned' and I read them all the time but they do not take the place of solid and indisputable medical evidence .

Edited June 11, 2007 by Berta

[free_spirit_etc]

Hmmm - My husband didn't file the CUE claims because the prevailing thought was to go ahead and get the SC for the lung cancer through first - and then go back and file the CUE claims - to keep the CUE claims from holding up the SC for the lung cancer. And since they never got around to making a decision in the lung cancer - the CUE claims never got filed.

How sad that the system is so inefficient that a vet doesn't file all the claims for which he is entitled because to file such claims will put his case in VA limbo for a longer period of time. And then the right to file such claims dies with him.

Free

[free_spirit_etc]

Thank you for explaining the difference. So on a claim he had pending - if they granted it - I would be able to file a CUE (if appropriate) for an Earlier Effective Date - because I would not be so much filing a cue on his behalf, I would be filing a CUE as it effected MY right to the accrued benefits from that pending claim.

But if a claim was not pending - I could not reopen the claim on the basis of a CUE - as it was his claim - and not mine. Though personally, I think the surviving spouse should be entitled to ALL benefits to which the vet might have been entitled. But I see where the law differs on this.

Where the Veteran Benefit Manual is talking about filing CUE claims - it was more to establish entitlement to DIC --for length of time the vet had been 100% disabled - than for accrued benefits.

The stronger CUES are the smaller cases that my husband did not reopen prior to his death because he didn't want to delay the lung cancer case. I also have some evidence I should have submitted prior to his death - on the asbestos portion - but I wanted to wait until we had the time to connect the dots and send it all in together. Because of that there is evidence that will not be in the file at the date of death.

Of course, they can still use the evidence for the DIC claim - Just not the accrued benefits claim.

It isn't really so much about the money. The smaller claims that I can't CUE now would pretty much be a break even thing for me. Because he was getting retirement - any VA benefit I would get would be erased by the retirement benefit he had recieved that would have to be repaid.

But I still wanted him to win his case on that - because he really should have. And I do understand that a strong IMO can really help -- but I also think it is horrid that a vet has to pay for one because though evidence is clearly in the file - the VA wants to overlook it - or have someone explain it away.

The only thing I would gain from being able to file the smaller claims would be that he would finally win those issues - and if he recieved VA benefits - whatever retirement pay was repaid would be deducted from the retirement pay he HAD been paid - and his ex would have to repay the amount of Former Spouse Protection she recived off that. I am assuming the amount SHE repaid would be paid to his daughter (who was his beneficiary for any unpaid retirement pay.)

So his daughter would come out somewhat ahead. And his ex would have to give some back. I am sure he would be happy with that - as she got the Former Spouse benefit just from making sure the marriage lasted 10 years in order to get it -- even though she was living with another guy for the last two years of their marriage. He tried to get divorced before the 10 years was up -- and you would think it would be easy if your spouse is already living with someone else. But she was able to delay it every step of the way. So she got $545 a month from his retirement pay and he got $157 a month from hers.

Can you believe - she even got her full $545 for February -- but only sent me a check for $28.20 for the 5 days he was alive.

So there would be some kind of justice served if he got to win his claim because he deserved to - and she had to give some back - and his daughter got the difference. I wouldn't gain anything financially - but I had still wished I could fight it.

As far at the additional evidence for the DIC and accrued benefits. Again I am torn about the principle of the thing. The accrued benefits is important because that would be an admission that was something HE WAS ENTITLED to.

That is why I have been hestitant to send a lot of additional evidence to support the DIC claim -- because then it would seem more like I would be winning the claim, instead of HIM. And I wanted HIM to win.

So I have debated whether to just let his claim stand with the evidence of record - to see if HE could win it with what he already sent. I know that would realy delay the DIC if the evidence wasn't strong enough. But I could always appeal and send additional evidence later.

It probably wouldn't be as important to him. He would probably just want me to send everything I could come up with - and as Berta says surround them with evidence. I know him - and as long as "WE" win - he would feel like HE won. But I have still had some trouble with that.

Free

I have 2 CUE claims that I filed after the veterans death.

However- these CUEs were based on decisions that I- as the established claimant- had been awarded yet in which the VA committed legal error.

Meaning I was a "Party' to the unappealed decision that I CUED since I received the decisions.

In Shields V Brown the widow had standing because the issue of accrued benefits is solely a survivor's issue.

A CUE claim of the deceased ciuld possibly be re-opened by the widow but the CUE occurred in a decision that the veteran received-therefore I agree that there would be no basis for the widow to claim CUE.

In my case- the VA sent me 2 award letters. They stated that the veteran was not eligible for SMC "consideration".

My vet rep at the time 1998-mentioned 'this is funny' as he read the awards-and told me he was surprised that VARO had avoided the SMC issue.

He just shrugged his shoulders and discussed the award.

What a dope I was-never asking him what he meant about the decision was "funny" and he should have given me the advise the file a NOD regarding the CUE issue.

He might have caused me monetary damages.

Upon receipt of my CUE on this in 2004 the VA stated that the veteran" was not eligible for SMC consideration under any circumstances."

I fought back with the regs.

38 CFR, M21-1 and an Office of General Counsel precedental opinion all clearly state that a veterans with 100% SC will be considered for SMC-

if they have additional independent disabilties under Section 1151 or direct SC.

Rod was 100% SC PTSD and over 100% in CVA, heart disease, and misdiagnosed diabetes-all under Sec 1151.

100%SC + 100% Sec 1151 = SMC.

I could CUE this because I was the claimant on the decisions that denied him SMC.

Also I squeezed the RO's statement out of them too- as to him not being eligible- so that was more evidence I used for the CUE.

There are 2 CUES and they have been with a rater for some time now.

A widow can CUE an unappealed final decision that the widow herself received.

The VA tried to deny the main CUE saying that Rod had not filed a Section 1151 in his lifetime-I was so angry I responded the "hell he didnt and it is in his c file and this claim was at the rating board when we called VA the AM of his death.It was there with his claim for higher PTSD rating and the former director of the RO sent me copy of my c file and it was right in it.

When VACO reviewed the claim (I filed an administrative review with them) they also had copy of his claim and their report was almost word for word what he stated they malpracticed on.

Rod had also sent the claim to whoever ran the VA at the time (Hershel Gober?)and to President Clinton because the VA had already messed up his other claim so he wanted to make sure if RO said they didnt get it (I have the proof of mailing) someone in our Gov would have it.

I also reminded VA that my DIC was based on a re-open of the Sec 1151 claim he had filed.

I forgot the question-but in any event-

a widow can successfully claim DIC under 1318 or any other way- but the decision is based on evidence in the c file at time of death.

Widows have a difficult time with the VA-that makes us no different then the thousands of men and women who served that get a lot of VA ola Crapola.

Vet reps often wish we didnt exist because they dont know the DIC regs.

It is Medical Evidence that wins a DIC claim.

If the medical evidence in the c file doesn't clearly support a DIC award the widow needs an independent medical opinion.

When the VA got my Chap 35 app or something they asked what my intentions were as to my schooling. I told them I had chosen a military college because the VA is a battleground and I as a claimant and advocate have to fight on that battleground.

A claim has to be approached like a battle plan-

a vet or widow needs to look for the landmines (whatever they can use to go against the claim) and then make sure their rear is covered.

We have to assess the enemy's intelligence and then use it against them (38 CFR)

then we have to surround the enemy- with all the evidence we possibly can get.

Past BVA and CAVC decisions are good battle ' lessons learned' and I read them all the time but they do not take the place of solid and indisputable medical evidence .