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[Guest rickb54]

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Edited February 19, 2007 by rickb54

[Jay Johnson]

I believe the VA could order a new C&P, if it called a CUE on itsef when, reviewing a transferred c-file.

Forgot to address this question directly......the VA cannot order a C&P based on CUEing itself due to the regulations behind a CUE. Since a CUE is simply looking at the legal issues behind the previous decision, a C&P exam could have no impact one way or the other. If the VA feels the previous RO's rating was wrong based on the medical evidence then they need to file an appeal with the "central office" stating why they feel that the previous decision was wrong.

The VA often claims the last decision could be wrong so they're justified in doing a fact finding mission, but, I believe, this is in violation of the standing regs...trouble is, they often get away with it:-(

Here are the regs pertaining to this:

§ 3.104 Finality of decisions.

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(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part.

(B) Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error.

[29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001]

§ 3.105 Revision of decisions.

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The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§3.500(B)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(B)(2) will apply.

(B) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office.

Edited March 17, 2006 by Jay Johnson

[jriverman]

Thanks Jay excellent information.....

Jay, super info!!! Thank you so much.

Does anyone know how the 3.327 stuff, or new and material evidence, applies to TDIU that has 20 year protection.

In otherwords - If someone goes to the VA for care of a SC condition and the Primary Care or other doctor informally determines that it or "some other" SC condition has improved and enters data noting such - can that trigger a re-evaluation/C and P even though the 20 year protection rule applies?

Is the DRO informed by computorized data entry of the percieved improvement and does 3.327 give that much leeway to the VA in re-exams, even when the SC condition/TDIU has 20 year protection?

Sorry for the length of the question, thanks -

Riverman

[Jay Johnson]

Jay, super info!!! Thank you so much.

Does anyone know how the 3.327 stuff, or new and material evidence, applies to TDIU that has 20 year protection.

In otherwords - If someone goes to the VA for care of a SC condition and the Primary Care or other doctor informally determines that it or "some other" SC condition has improved and enters data noting such - can that trigger a re-evaluation/C and P even though the 20 year protection rule applies?

Is the DRO informed by computorized data entry of the percieved improvement and does 3.327 give that much leeway to the VA in re-exams, even when the SC condition/TDIU has 20 year protection?

Sorry for the length of the question, thanks -

Riverman

The way I understand the 20 year rule is that it cannot be over-turned even by CUE. The only way to reduce someone after 20yrs is to prove fraud.....even if you were 100% better and dancing in the streets.