Ssi Not Considered

[chinavet]

Curious what you folks think:

As you know, cause you helped!, I was awarded 70% last year after 10 years of VA fumbles. They rated me at 30% ten years ago and slowly raised it though the years so that all my retro was eaten up by money they paid out in NSC Pension. They said they were unable to get Social Security data regarding my SSI which predated my NSC Pension.

So, I went in Novermber after recieving my award letter and asked the SS folks how to get verification that I was 100% disabled as a result of my now service connected condition. The lady at the desk typed me up a letter and I turned it in in January in hopes of IU or an increase.

Question is: Does this consitute a CUE? Can I get them to go back 10 years and now look at the fact that I was already government rated as 100%??

[john999]

Berta

So the fact the VA failed to get the SSI records is a failure in the VA's duty to assist. I know that " duty to assist" issues can't be part of a CUE. For instance, the VA fails to give you a C&P exam. That is a failure in the VA's duty to assist and not a CUE. This is what the VA told me and my lawyer anyway. If you have VA's records and the VA fails to get them is that also a failure in duty to assist? That would be enough for a regular appeal but not a CUE, correct? If the records are in the file and VA does not review them then that is a potential CUE.

John

[carlie]

Personally I do not feel that in VBA's lack of consideration

of SSA info in the prior decision would rise to a CUE.

Reason - it would still always leave room for the weight

accorded by the decision maker.

In other words that information alone on it's own would not turn the decision.

JMHO

[jbasser]

You would be better served to get your hands on a couple of federal court cases that were overturned because the VA didnt get the SSDI records.

Also the SSDI disability condition must be the same condition your service conencted for.

There is no cue here as the decision is not final and there is no cue on duty to assist issues.

You need an attorney to help you.

J

[Berta]

I agree John999 :

“So the fact the VA failed to get the SSI records is a failure in the VA's duty to assist. I know that " duty to assist" issues can't be part of a CUE. For instance, the VA fails to give you a C&P exam. That is a failure in the VA's duty to assist and not a CUE. This is what the VA told me and my lawyer anyway. If you have VA's records and the VA fails to get them is that also a failure in duty to assist? “

Yes.

“That would be enough for a regular appeal but not a CUE, correct?”

Sure,if one is still in the appeal period.

“If the records are in the file and VA does not review them then that is a potential CUE.”

Yes, I cited 38 CFR 4.3 and 4.6 as a clear and unmistakable evidentiary error in my CUE claim.

But I succeeded on 3 other legal errors so I dont know if that type of CUE under 4.3 and 4.6 would work and VA didnt mention that in my decision.

Chinavet said “I was awarded 70% last year after 10 years of VA fumbles. “ Was that a TDIU award?

Are you still in the appeal period as you could potentially get a year additional retro with the SSDI records, by appealing this decision.

“They rated me at 30% ten years ago and slowly raised it though the years so that all my retro was eaten up by money they paid out in NSC Pension.”

If this was a continuously prosecuted claim, then you can appeal the most recent decision.

Did any decision over the years become unappealed?

If so that is the decision that could be cued. J Basser is right and I bet there are similar claims at US CAVC. When I get time I will search there.

Has the VA acknowledged the letter from SSA you gave them?

John said:

“If you can prove that the VA did not make a good faith effort to get your SSDI records you might have something, but I don't think it will be a CUE. I might be wrong so you could try. “

I agree that something is wrong when theVA does not get SSA records that are probative to a claim.

But VA must be fully aware these records exist and the vet must also sign an authorization form and send it to VA.

My husband's SSA records were critical to his SC claim , e signed the authoritization form 21—22,and the VA never even attempted to get them but told my Congressman the SSA refused to release them. It was BS. VA got them right away after I called SSA and found out they had lied.

wait hold that phone------------------------

'replying to ssi not considered'

was the SSA award a SSI award or a SSDI award?

SSI is not the same criteria as SSDI.

[john999]

Carlie

You know I think it is probably VA SOP to argue that unconsidered evidence is often amitted to by VA, but then branded as not be conclusive enough to have changed the outcome of the decision. This is what VA is saying in my CUE. They admit not considering my evidence, but then say it is not "undebatable" that this evidence would have changed the outcome of the original rating. This is a very large hole the VA can drive a truck through because they say "reasonable mind" (their minds) must agree that evidence for the vet is undebatable. You can debate almost anything except maybe speed of light or gravity. VA says that evidence of CUE must be objective, but the method they use to determine that is very subjective. Phrases like "reasonable minds" and "undebatable" are subjective unless you have a math problem.

[chinavet]

Thank all of you so much!

I am in the appeal period and did turn in the documents needed for

an upgrade.

I will let them decide this upgrade. It has been in since 2010 and they've had all they need to

Rate it since January.

After they make a ruling I will decide whether or

Not to submit a CUE though it sounds like they will balk. After 12 years of this

I may just quit what feels like a part time job with the VA if my upgrade is

Approved

Thank you again. So glad I found you guys.