Asking The Va To Cue Themselves

[free_spirit_etc]

From another thread:

http://www.hadit.com/forums/index.php?showtopic=33395

My point is when they are asked to CUE themselves (I got a second DRO review in 2005 as well with this type of request) they have to do something.

Asking VA to CUE itself must be supported by some VA case law or legalize that applies to the claim and the request-as in your case here.

Berta (or others who know such things...),

I am very interested in this part. I sent a request for the VA to correct a clear and unmistakable error on my claim in February 2009. The issue was the November 2008 dismissal of my appeal as untimely, though it was clearly sent within the time-frame.

The VA signed for the CUE request document, and acknowledged by IRIS that they had received it. However, they referred to it as an NOD, rather than a CUE Request, in the IRIS. It is clearly labeled at the top of each page "Request for Correction of Clear and Unmistakable Error

RE: Dismissal of November 7, 2008 NOD".

As the VA did not take any action on my Request that they CUE itself, I also submitted an NOD on the same issue in October 2009, to assure that it is on record that I disagreed within the time-frame to do so.

However, it does seem like my claim might move faster if the moved on the CUE, and corrected the error, and then processed my initial NOD (as timely) than if they go all the way through the appeals process with the NOD on whether my appeal was timely, before they ever start dealing with my November 2008 NOD itself.

So I am interested in your statement that if you ask the VA to CUE themselves, they have to do something.

Would it be advisable for me to follow up and address that issue, and ask the VA when they expect they might address my February 2009 CUE request?

Edited December 21, 2009 by free_spirit_etc

[JamesBreckenridge]

Well, what you actually did was submit an NOD for the rating decision that said your appeal was untimely. Actually, it sounds like you sent it twice.

The rating specialist/DRO that gets your file will see that you filed an NOD alleging a CUE in the previous rating. They should take a look at the date your appeal was received, and the day you were notified of the decision that caused you to send in the appeal in the first place. If it was within the time period, it is probably a CUE, and the rating specialist/DRO will note it, and then they will have to pick up the appeal because it really was timely. If they're very lucky, all the evidence needed for a grant has been provided by the veteran, so they can dispose of the issue quickly. If they're unlucky, more development will be necessary, and things will drag on for a while longer.

Note: I'm talking about originally denied claims and not reopened claims or unsuccessfully reopened claims or continuously prosecuted claims... for those situations the actual date at which your appeal rights end get kind of fuzzy. I count your one year appeal period from notification of the first denial, not notification of latter confirm and continued denials, whether they are on the merits or due to a lack of new and material evidence.

[free_spirit_etc]

James,

Thank you very much!

I thought asking them to correct a CUE and filing a NOD were two distinct things. However, I realize that asking them to correct the error was, in effect, disagreeing with the decision. I did send the second one, labeled NOD, later - to make sure they wouldn't say I did not send an NOD.

But what I am understanding you to say is that they can actually correct the error (i.e. acknowledge my appeal was timely) AND process the initial appeal at the same time. That is wonderful news!

So it would only be in the event that they did not consider my initial appeal to be timely that the NOD on the timeliness of the appeal would be processed alone?

And yes, the initial appeal was the appeal on the initial decision on my DIC claim.

I highly doubt that I will have the case fully developed by that time. I guess it depends on how long it takes. My main problem is that I need to submit and IMO. But I am hesitant to get one until I get all my husband's medical records.

I did get a copy of the C-file. But I am missing:

1. My husband's discharge physical.

2. A copy of the VA opinion that was listed as evidence in the denial letter.

3. The complete report written on a Report of Contact form that was issuing a medical decision.

It is very likely that 2 and 3 are the same thing. The report written on the Report of Contact form is a hand written medical opinion. But I only got the first page. It says (over) at the bottom, but I didn't get the rest of the report.

I have asked for the reports quite a few times, but they keep telling me that I need to give them the names of the doctor, dates, etc. in order for them to locate them.

I don't have that information. That information is on the reports (which I do not have a copy of).

The discharge physical was in my husband's file at one point. He filed his initial claim when he retired - so his files went straight to the VA. And his earlier decisions reference the discharge physical. But that seems to have disappeared.

But I am hesitant to get an IMO, only to have it discounted because the doctor did not review the documents that I can't get a copy of.

So I am wondering what the best way to proceed on that would be.

1. Ask for my Congressman to try to obtain me a copy of the documents I have been requesting.

2. Drive to the VARO and see if I can get copies in person.

3. Ask the doctor to write an opinion and mention that that certain medical documents are missing.

4. Something different.

At this point my claim is supposed to be in a Special Processing Center for claims requesting special processing for missing documents. I resubmitted the evidence I had sent (by certified mail) in June 2008 (within one year of the VCAA notice).

Free

Well, what you actually did was submit an NOD for the rating decision that said your appeal was untimely. Actually, it sounds like you sent it twice.

The rating specialist/DRO that gets your file will see that you filed an NOD alleging a CUE in the previous rating. They should take a look at the date your appeal was received, and the day you were notified of the decision that caused you to send in the appeal in the first place. If it was within the time period, it is probably a CUE, and the rating specialist/DRO will note it, and then they will have to pick up the appeal because it really was timely. If they're very lucky, all the evidence needed for a grant has been provided by the veteran, so they can dispose of the issue quickly. If they're unlucky, more development will be necessary, and things will drag on for a while longer.

Note: I'm talking about originally denied claims and not reopened claims or unsuccessfully reopened claims or continuously prosecuted claims... for those situations the actual date at which your appeal rights end get kind of fuzzy. I count your one year appeal period from notification of the first denial, not notification of latter confirm and continued denials, whether they are on the merits or due to a lack of new and material evidence.

[Berta]

"I did get a copy of the C-file. But I am missing:

1. My husband's discharge physical.

2. A copy of the VA opinion that was listed as evidence in the denial letter.

3. The complete report written on a Report of Contact form that was issuing a medical decision."

The medical records are not in the C file- they have to be requested separately.

The C & P medical opinion can be obtained from the VAMC where the C & P was done.

Reports of Contact are in the C file.

I would think between the actual medical records and the C file that the discharge certificate should be found in the files they have.

James is certainly correct on his advise:

"If it was within the time period, it is probably a CUE, and the rating specialist/DRO will note it, and then they will have to pick up the appeal because it really was timely. If they're very lucky, all the evidence needed for a grant has been provided by the veteran, so they can dispose of the issue quickly. If they're unlucky, more development will be necessary, and things will drag on for a while longer."

If they agree the appeal was timely then the CUE issue has been resolved and the focus would be solely on the medical evidence they have.

It has been some time since you were here-

the VCAA letter they sent to you some time ago ( requiring a response) contains everything they need to have.

[broncovet]

James

May I ask as to what is a "continiously prosecuted claim"?

This is a term I am unfamiliar with. I am guessing it means that it has been denied a few times, and the Veteran continues with an appeal. Is it treated any differently?

[carlie]

James

May I ask as to what is a "continiously prosecuted claim"?

This is a term I am unfamiliar with. I am guessing it means that it has been denied a few times, and the Veteran continues with an appeal. Is it treated any differently?

bronco,

This question has been answered in the other topic thread you posted.

http://www.hadit.com/forums/index.php?show...c=33458&hl=

carlie

[free_spirit_etc]

Berta,

Thanks!

The medical records are not in the C file- they have to be requested separately.

I have his SMRs and Post Service Medical Records – except his discharge physical.

My husband put in a specific request for a copy of the discharge physical before he died. I put in a specific request for the discharge physical after my husband’s death. I even drove to Chicago to see the file – but we couldn’t find it. But again, the C-file was pretty jumbled up – and quite a few files were in no particular order. They told me my husband may not have submitted it to them.

My husband applied to VA benefits as he was retiring. So his records went straight to the VA upon his retirement.

We attempted to get a copy of the discharge physical from the National Records Center, but they responded that all my husbands records are the possession of the VA.

My husband’s chronological history in his medical records indicates he received an extensive physical June 18, 1998 and that a Form 2697 was completed. But the form is not in his file.

Some of his earlier VA decisions reference the discharge physical – indicating that it had been part of his file when those decisions were made.

It appears that the VA may have lost his discharge physical. Again, when I received his C-file there were copies of other veteran’s medical records in my husband’s C-file. I even wrote the VA and asked them to check those veteran’s records and see if they could find a copy of my husband’s discharge physical in their records.

I keep requesting that they send me a copy of his discharge physical if it can be located.

The frustrating thing is that they keep acting like it was my husband’s responsibility to send a copy of the form the them, when in fact, they had the original document, and now seem to have lost it before we could get a copy.

The C & P medical opinion can be obtained from the VAMC where the C & P was done.

I have a copy of my husband’s C&P exams. But my DIC denial letter listed as evidence a VA medical opinion (not a C&P exam) done in October 2006.

I have put in specific requests – The October 22, 2007 letter denying my claim lists a October 2006 VA Medical Opinion as evidence. I would like to get a copy of that opinion.

I was told my request was forwarded to the Privacy Act Officer – and that they would send a copy of the opinion, while I was still waiting for the C-file. However, I just got the C-file.

Reports of Contact are in the C file.

When I got the copy of the C-file, the only thing resembling a medical opinion is the opinion handwritten on a Report of Contact form. I only got the first page.

(This is most likely the same medical opinion they referenced in the denial letter, though I am not certain. I also think the medical opinion was written October 2007, rather than October 2006, as listed – i.e. written as they were adjudicating my DIC claim).

I informed the VA I only got the first page of the medical opinion written on the Report of Contact form, and requested the remainder of the report.

They responded that I would need to tell them the date the report was written in order to locate it. I informed them I don’t have the date, as it is not on the portion of the report that I have.

They asked me to send a copy of the report I have. I sent it by certified mail. They (much later) informed me they did not receive it.

I had sent the copy along with a packet of evidence I was sending in response to the VCAA notice. I sent an IRIS informing them that I had sent both and gave them the tracking number. The VA signed for the document. But they informed me later that they never received it.

I would think between the actual medical records and the C file that the discharge certificate should be found in the files they have.

I totally and completely agree. That is why I have trouble understanding the perpetual circles we keep going around in trying to obtain these documents. That is why I was wondering if it might be better to just ask my Congressman if they can obtain them for me.

It has been some time since you were here

Yes. I have been pretty busy handling our Social Security claims, which took most of my focus. I didn’t have a lot of time left over to chase my tail with the VA. So I did what I needed to do to keep the claim open with the VA while I focused on Social Security. Now that Social Security is settled, for the most part, I can start focusing on the VA again.

the VCAA letter they sent to you some time ago ( requiring a response) contains everything they need to have.

I sent an entire packet of evidence in response to the VCAA notice, including buddy statements, evidence of my son’s disability, and other supporting documents. I had asked for an extension of time to submit evidence, as I wanted to submit an IMO, but was waiting for the VA to send me the C-file, and the medical opinions. They informed me that they forwarded my request for an extension to someone who would check and see if it could be granted. But I never heard back from them.

As I never heard back from them, I submitted the evidence I did have within one year of receiving the VCAA notice (June 2008). I also sent them an IRIS informing them I sent the evidence and giving them the certified mail receipt number.

They responded by telling me that I didn’t have any open claims, (except the burial claim) and so they didn’t know what I was submitting evidence for. I informed them that I was submitting the evidence in response to the June 2007 VCAA letter – and though they had adjudicated my claim in November 2007 – since I submitted evidence within one year of the June 2007 VCAA notice, I wanted the claim re-adjudicated.

We went back and forth many times in IRIS – and several MONTHS later – when I finally asked POINT BLANK “Did you GET the evidence I sent?” They responded that they had not received it. (They also told me that there was no advantage to using certified mail – so I should just start sending things by regular mail. – ACK!!!!)

This seemed particularly crazy. I submitted evidence within one year. I sent the IRIS saying “Since I have not heard back on my request for extension of time, I am sending the evidence I DO have within one year of the VCAA notice. I sent it today. This is the Certified Mail Receipt number.”

We IRISed back and forth MULTIPLE times about my claim. And not one time did they mention they had not received the package that I had submitted the original IRIS about.

They did receive the package, because I have a signed receipt from the VA for it. I have resubmitted that evidence, along with both evidence that I sent it and evidence that the VA received it – under the Request for Special Claims Processing for Missing Documents.