Filing A Claim For Clear And Unmistakable Error In Bva Decision

[foleyj]

I am hoping that there is someone here that can help me with this. I am SCD 20% for DDD and had spinal fusion of L4-L5 on 7/8/2009. I was admitted to the hospital on 7/8/2009 and released on 7/12/2009. I was given a letter from the discharging surgeon that I would require 3 months of convalescence. I submitted a claim on 8/7/2009 for a convalescence rating of 100% for the 3 month period that I would be on convalescence. I received my decision on 1/25/2010, here is where it gets confusing. I will first post the decision and then I will point out the things that I think are confusing according the the regulation.

Decision:

An evaluation of 100% has been assigned effective August 7, 2009 based on surgical or other treatment necessitating convalescence. Hospital records indicate that you underwent L4-L5 laminectomy and S1 fusion, on July 8, 2009. The statement from the physician indicated that you would need a three month period of convalescence. The 20 percent is continued form November 1, 2009, first day of the month following your three month period of convalescence. The effective date of the temporary 100 percent evaluation is August 7, 2009, the date we received your claim for benefits. The effective date of reduction back to 20% is November 1, 2009 the first day of the month following your release from the convalescence period.

Points of Confusion:

1. The rating decision assigned the effective date of the convalescence as 8/7/2009 which was the date the claim was received. According the 38CFR 4.30 A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release.

The effective date should be the date of hospital admission which would have been 7/8/2009, not 8/7/2009 which was the date the claim was received.

2. Even though they assigned the effective date as 8/7/2009 I was only paid for 2 months instead of the 3 months that was given by the order from the doctor. I was only paid for September and October the rating went back to 20% on November 1st.

I am not sure why I was only paid for 2 months even if they had the wrong effective date.

So what I need is, first for someone to look at this and make sure that I am not mistaken in my assumptions that the rating was not assigned correctly. Also if it is correct what is my next course of action? Do I file and NOD? A letter of Reconsideration? Or a CUE claim? Any help would be appreciated.

Thanks

Jason

[Philip Rogers]

First off it's not a CUE. As stated, a CUE can only be on a finalized claim, meaning you can't CUE until one year after the decision, when the decision becomes final.

Carlie is right, it should be a procedural error. As I see it, the VA should have awarded 100% convalescent pay effective 7/8/09 but the first payment wouldn't actually be received until 9/1/09, because the VA pays after the first full month is completed, meaning after August is done. Again, as I see it, a second 100% payment would be paid on 10/1/09 and a third 100% payment on 11/1/09. On 11/1/09 you reverted back to 20% but actual payment, at the 20% rate, doesn't start until 12/1/09. I would file a NOD stating there was a "grave procedural error" and explain as I have above. Anyone can correct me, if I'm wrong, as I'm not familiar with convalescence awards but am assuming they are the same as other awards. jmo

pr

Edited June 3, 2010 by Philip Rogers

[Berta]

What I suggested was that this veteran should ask them to call on CUE on themselves.

It worked for me and resulted in 3 award letters until they got it almost right.

Also in 2005 I Irised the VSM to CUE the decision I had just got.

That worked too- I got another immediate DRO conference with a rep and the DRO.

The rep -even after a detailed conference with me- showed up and messed up my claim AGAIN!

He has been demoted.

If the VA violates their own regs (except for DTA regs as they do that all the time anyhow)in some cases - if the veteran can find the basis for their CUE in a pending claim they can use this is one method of getting the error resolved.

I got the idea years ago because I noticed in some BVA decisions that the VA had Cued itself on a few decisions.f they can do it-so can we.

[Berta]

This case has reference to 'grave procedural error" claims:

http://www4.va.gov/vetapp02/files01/0201225.txt

I am not suggesting anyone is wrong here in their approach to this- and actually as long as the vet can get the attention of someone at VA right away-they can fix this right away.

Also In 1996 I sent them a brief letter saying their recent decision must be a clear and unmistakable error because they had not added and multiplied something right.They corrected that in 3 weeks.

I guess my point is- these types of errors should not happen and filing a NOD staves off the proper result for many many long months.

Any well worded challenge -with evidence- to any procedural defect or down right administrative error - that calls their attention to the error-

might get it resolved faster that a NOD would.

No one has to accept or even read or consider my opinions here.

What worked for me a few times might not work for someone else in different circumstances.

Edited June 15, 2010 by Berta

[carlie]

Berta,

I always hold your thoughts and opinions in high esteem :)

[broncovet]

I think I understand, and feel that both these views are good.

1. First, we think of CUE to be applied to a final decision where the Vet did not appeal it within the one year time frame, so I agree with PR on that. Of course, this works, but it requires a higher level of proof for a "CUE" claim than for a traditional, timely filed NOD appeal. For this reason, I dont see why one would make it any harder on themself to "CUE" an appeal, if it were not necessary to meet the strict CUE standard, but instead of a CUE, simply file the NOD on time.

2. That being said, I still agree with Berta, but take "asking the VA to CUE themselves" not INSTEAD of filing an appeal, but IN ADDITION TO filing a timely filed NOD. Frankly, I dont see why you cant "Ask the VA to Cue themselves" like Berta suggests, but if the VA wont do that, you can still timely file an NOD within the one year time frame.

I have seen where professional fishermen use MULTIPLE HOOKS that catch more fish than a single hook.

My advice is to take both Berta's and PR's advice by 1) Asking the VA to cue themselves AND 2) Make sure you file a timely filed NOD (unless Asking them to Cue themselves works within the one year period).

[Berta]

Thanks Carlie- everyone here has some good opinions on all this.

NVLSP (VBM) barely mentions raising procedural error or defect as a basis for getting a better decision.

Then again they don't mention asking the VA to CUE itself at all.

Next time I talk to Rick Spaturo or one of the other NVLSP lawyers -I will run it by him. And let everyone know what he thinks.

In any event -WHATEVER it takes -is my MOS.

When I got them to CUe themselves in 2005 it was an IRIS request and in the Re: I Typed What the Hell Is This!!!and asked them to CUE the decision and gave them the exact legal basis for the request.

I dont recommend using those words. A letter should suffice.

The BVA remand I got subsequently mentioned that I had "taken steps" to insure issue of an SSOC.The IRIS email was in the file that the BVA had.

I could have raised another legal issue at that time with the VARO but I saved it for the formal I-9 form.

In many cases a vet should not have to wait for a NOD on an obvious legal error the VA made to be handled properly.

And in some cases the vet has to get tough.It helps having a rep with an office in or near the RO building to intervene in cases like this one regarding the wrong payment of a benefit.