Jump to content
  • 0

Bell V. Derwinski Used To File Cue


Bossman

Question

Berta and Rentalguy1, I did something today to try it and see if it could be done. I filed a CUE based on the constructive-notice rule of Bell v. Derwinski, 2 Vet. App. 611 (1992).

There is medical evidence in my records that should have increased my compensation and it has been there for 11 years. I have filed claims a couple times for increase but have been denied. There is evidence in my C-File that show that the information has been there.

It is my hope to bring attention to what is happening here in Atlanta, GA. I have file a 21-4138 to request a hearing to fight an adverse proposal. I submitted it at the end of January 2007 but it was stamped August 2007 several months after submitted (Denial of Due Process). I submitted a request for a Denovo Review (CUE,because the medical information is there to support an increase)in June 2007 before the reduction or a SOC. I did not receive either. All of this happened in 2007. And all of this happened before the reduction.

I am also considering getting my local Newspaper involved (the AJC). I know that this will cause some delay in my decision from a DRO hearing in October of 2008 but I thhink that it is important to try to bring attention to what is happening here in North Georgia.

Is there a good chance that this will suceed? It sounds good.

By the way I was awarded SSDI this month. VA denies that there is loss of use of right leg. They deny that I had surgery on both SC knees eventhough they have a copy of the surgery summary and a letter from the Doctor stating that I had knee surgery.

Link to comment
Share on other sites

Recommended Posts

  • HadIt.com Elder

Bossman, yes, your case sounds very interesting and could be of help to others of us here.

I have file a 21-4138 to request a hearing to fight an adverse proposal.

What do you mean 'adverse proposal'?

I submitted it at the end of January 2007 but it was stamped August 2007 several months after submitted (Denial of Due Process). I submitted a request for a Denovo Review (CUE,because the medical information is there to support an increase)in June 2007 before the reduction or a SOC. I did not receive either. All of this happened in 2007. And all of this happened before the reduction.

Sounds like your claim was incorrectly dated.. Sounds like you requested a DeNovo review. Sounds like you did get a reduction. Sounds like you didnt get a SOC.

Do you have a copy of your Cfile that shows the details?

Sounds like you do not have a decision from a DRO hearing in October of 2008

By the way I was awarded SSDI this month.

Congratulations, did you apply for IU? and if the VA denied you? how so? Are your leg and knees service connected?

Bossman, Sounds like you are willing to work to get whats due, good luck and let us know,

Cg'up2009!

Link to comment
Share on other sites

There is medical evidence in my records that should have increased my compensation and it has been there for 11 years. I have filed claims a couple times for increase but have been denied. There is evidence in my C-File that show that the information has been there.

Just to look at it from a legal view: How do you know it was not it was not reviewed? Remember, the use of and weight assigned to medical evidence is a judgement call of the rater. Judgement calls are not subject to CUE.

Bell opened the doors for veterans in that it forced the VA's hand to ensure that all medical evidence was gathered and reviewed. In simple terms if a vet was filing a claim for actual loss of a limb and he/she was denied and then it was learned that the VA was in possession of his/her medical records from Walter Reed indicating that they had lost the limb in combat, however the RO failed to request the records - the mere fact that the records were in the VA system calls for Bell to come into play.

A loss of a limb situation is an easy fix under Bell, however, a claim for x medical condition, where the supposed medical evidence is in the CFile and a claim by the veteran that it was not used gets a little fuzzy as the VA can simply claim the "judgement call" card. At this point it will be an UPHILL battle trying to prove other wise. That is unless it is a situation where the issue at hand is very clear ie..... vet claims his disability has increased due to the fact his knee has had to be completely fused - the va then says no it has not - then the vet says yes it is take a look at the medical records in x VAMC cause they are the ones who did the surgery, could not fix it so they fused it.

Sorry to ramble but just wanted to let you know that if your disability and its increase are not clear cut and if the medical evidence you are attempting to pull in under Bell is not clear cut then you are going to have a long haul with such a CUE claim.

Edited by Clown Man
Link to comment
Share on other sites

  • Subscription Holder

If you evidence is not listed there is no way to tell if the VA reviewed it ,or did not review it. That is a basic flaw. You say how does the Vet know the evidence was not reviewed? How does the Vet know it was reviewed? The VA says just trust us. Trust but verify. How can you verify if the evidence is never listed or mentioned in the decision? It seems to me not listing evidence is the CUE. That is not the same as weighing it. If they dont' list it there is no way to know if they weighed it. This leaves the vet in No Man's Land. In my own case the VA said I had a mild disability based on their VA records. My doctor said I had a severe disability and was unemployable. My doctor's report was never listed or mentioned in the decision. They did not weigh the evidence. They just never even considered it. The fact my doctor said I was unemployable should have been an inferred claim for IU.

  • Like 1
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Ads

  • Ads

  • Ads

  • Our picks

    • A few days ago, my attorney sent me this email on a PTSD claim I filed back in 2016 and have appealed to the BVA.  After getting this email, I checked eBenifits & VA.gov and they still read, "waiting to be sent to a law judge".

      "I am reaching out to give an update on your case. We are currently pending a Rating Decision in response to the Board Appeal filed 05/18/21. If you have received any recent VA correspondence, please be sure to inform our office"

      Thank You

       
      • 36 replies
    • Burn Pit Claim Assistance
      The NVLSP launched its Burn Claim Assistance program:  Details at the NVLSP website:

      https://www.nvlsp.org/what-we-do/burn-pits-claims-assistance-program/
      • 0 replies
    • I have a C&P exam scheduled for next week for sleep apnea. I completed an at home sleep study sent by VES. However, I just visited ebenefits and noticed that my claim has been closed before my scheduled exam. Anyone ever experience this?
      • 11 replies
    • I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 
      • 20 replies
    • 5,10, 20 Rule
      The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
        • Like
      • 59 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News


  • veteranscrisisline-badge-chat-1.gif

  • Fund HadIt.com

    710%
    $10,656.00 of $1,500.00 Donate Now
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines