Rating Software

[vaf]

I know this may not affect most of you, but in the event someday you are hanging by a thread between one rating percentage and another higher one, this will matter. I've posted before, that according to the combined ratings table in 38 CFR, my husband's at 100%. However, we just recently received confirmation through our U.S. Senator that the VARO is using software to compute percentages. In most cases, the results are the same as what is reflected in the table. However, in my husband's case, they are not. The software rounded him down to 90%, and I'm sure this is being done many times over throughout the country to other disabled veterans. You all know the difference this makes, plus, he's retired military and is supposed to be receiving the balance of his military retirement. We wrote the VARO about the discrepancy last February, not realizing that it was a matter of the software being used, instead of the VARO possibly overlooking one of his ratings. We did not receive a response, so once we received the letter from the Senator, we decided to interpret the VARO's silence as a denial, and we filed an NOD earlier this month and requested an SOC in regards to our plan to appeal.

There is no discussion in 38 CFR regarding any software that's been authorized to pre-empt or supercede the actual rating table that is in 38 CFR, Part 4, 4.25. Any software program that has not undergone objective scrutiny through the normal regulatory process involved with making amendments to 38 CFR we hold is invalid. We also argued reasonable doubt being resolved in favor of the veteran.

If this is an issue of interest to anyone, please let me know and we'll keep you posted.

[wallyg]

It should be of interest to everyone, whether 100% or not, since those with 100% may be looking for that extra 60% for SMCs.

Certainly, the lazy attitude and lack of simple math ability that is being demonstrated here, is a valid point of contention, in that the Table in CFR 38, Chap. 4, is designated as the formal method of calculating ratings.

I think you should file a CUE, as a clear violation of the rules,

[vaf]

Wally, should we wait for a response from the VARO regarding our NOD, or should we go ahead now and file a CUE with the VARO?

My husband's got a pending CVA hearing, and a lawyer to assist. We were also thinking of asking for a writ of mandamus, but I know these are hardly ever granted.

Which way to go?

[Pete53]

Dear Vicki:

On the contrary I have seen a Writ of Mandamus move mountains. It lights a fire under the VA asses so to speak cause it makes them give an answer as they don't want to be ordered by Court to do their job.

Wally, should we wait for a response from the VARO regarding our NOD, or should we go ahead now and file a CUE with the VARO?

My husband's got a pending CVA hearing, and a lawyer to assist. We were also thinking of asking for a writ of mandamus, but I know these are hardly ever granted.

Which way to go?

[vaf]

What is the time frame, roughly? In other words, am I gumming up the works with a writ moreso than I would with a CUE? Would a CUE delay things more than just an NOD followed by an appeal?

We're just getting the claims file back after it being in Washington for two years regarding a now completed Board hearing, and a pending Court hearing, which stopped everything that was filed or pending in the interim. Would we be doing something that would send the file back to Washington for another two years?