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Berta

Cue Question

Question

I got a friend 100 P & T some time ago after a long ordeal with the VA-

He had been NSC (another example of how nothing is impossible with the VA.)

They gave him over ten years retro at 100 back to date of the claim.

But then he was talking to me one day and remembered they had denied the same claim in 1981-I saw basis for a CUE,wrote it and he filed it.

He is repped by the DAV.

He just got a decision stating that

1. VA was unaware of his mental disability when he filed his 21-526.In 1981

He had been awarded SSA in 1980 so it seems to me he said Yes to 4 g on the 526 and told them the nature of the disability.

Also he soon thereafter became a Domiciary Patient- so I am sure the VA had to be aware of his SSA because doesnt the DOM require a payment of some sort from any NSC vet with some income for disability?

2. VA said he never responded to their request for additional competent evidence that he had a current disability.

It is quite possible due to the severe nature of this vets mental disability that maybe he didnt tell them he got SSA for what ultimately became SC.

Also possible he did get a letter and didnt respond to it-something I never considered when I prepared his CUE claim.

Question- if a vet says Yes to 4 G on the 526 doesnt that trigger VA to send them a SSA authorization form?

I can understand that CUEs do not involve Duty to Assist but wouldnt that authorization form be mandated by the way the vet files out the 4 G question- are you in receipt of or have you applied for SSA?

Like the TDIU form?

I forget how I shaped this all into a CUE claim for him- and this is on a BVA remand from a 2006 decision-years have passed and he forgot to tell me the claim was remanded months ago-

I actually think he might have been institutionalized during the time frame the VA asked him to respond due to his mental disability.

Does anyone see what I mean here?

DTA violation is not a basis for CUE- but CUEs are like the Watergate question- what did VA know and when did they know it-

VA knew (I think----- this veteran is not easy to get info from due to his disability)

that he was 100% per SSA and they knew it in 1981.But only his 526 will reveal that.

Maybe I can find his remand at the BVA web site-

I advised him to get his C file long ago but dont think he did. It is the C file that might well reveal the basis of the CUE.

Does any of this make sense ?

The decision never once mentioned the SSA award as evidence they had -but they said the veteran contended that he got SSA in 1980 for what became a 100% SC P & T a few years ago back to 1995-when he re-opened the claim.

He deals with my VARO so I am very wary of anything this RO says in writing.

If they didnt know he had mental illness in 1981 -I wish I had known that too.

They cant commit a CUE on what they do not know or have evidence of.

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4 answers to this question

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It makes sense to me that if VA knew he was on SSD in 1981 for a SC condition this should have triggered some kind of IU claim at least. I see it as being a claim where VA should have inferred IU from their knowledge that he was unemployable. If the VA did not know he was on SSD for SC condition then no CUE.

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You are absolutely right John-

I wrote the claim based on fact that he said the VA knew of his disability in 1981 and his SSA award.No attempt was made on VA's part to obtain the SSA files.

DAV also sent them a Statement in Support of the CUE claim.

I used M21-1 -the part where it says the VA must rate all disabilities they are aware of for the CUE- cant find my copy of it-

and the remand seems to have been based on a VCAA violation- but I think on another entirely different matter yet the remand raised the CUE issue.

You are right-I tried to explain to him CUEs are like the famous Watergate question-what did they know and when did they know it-

I dont know what he told them on the 526.But they sure might be right in this decision.

Thanks.

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Berta,

You posted,

"He just got a decision stating that

1. VA was unaware of his mental disability when he filed his 21-526.In 1981

He had been awarded SSA in 1980 so it seems to me he said Yes to 4 g on the 526 and told them the nature of the disability.

Also he soon thereafter became a Domiciary Patient- so I am sure the VA had to be aware of his SSA because doesnt the DOM require a payment of some sort from any NSC vet with some income for disability?"

I myself would also be very interested in what information is contained in his

treatment and/or progress notes from when he was living in the dom.

There is probably great medical evidence contained in them for a IU claim.

jmho,

carlie

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Carlie -I met him when he was Dom Pt in 1988 or 89.

He does get 100% P & T for this condition now.

His DOM info and mental health doctor's notes were not extensive.He lived in the Dom for years.I knew his doctor quite well and this doctor did not document much.

His recent decision was regarding an EED due to CUE.

He went from "O" NSC to 100 % with retro of almost 1/4 million.But not entirely due to his mental health notes- or DOM stuff-

we proved that a disciplinary situation in the Navy was his first manifestation of his mental SC disability.

None of this was easy to do but a doctor sure agreed with this and he won his award.

It was not the VA med recs but the SSA award as well as what we proved to be the inservice manifestation-not of a disciplinary event-but due to a mental illness that was the best evidence we had.

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