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%??

[USNDW]

If the VA failed to obtain records that they knew existed as identified by the Veteran that were available, probably a New and Material Evidence claim.

If the C file has a copy of the SSA records, but the VARO did not mention them in the evidence, then the problem would be, as already pointed out, proving that those records, if reviewed would have led to an increased rating, TDIU, or SC pension. Just because they don't list a document in the evidence section, also does not mean you can prove they did not review it.

Pretty crappy. I also think that is has been pretty recent that the VA and SSA were REQUIRED to gather records from each other? Coul be wrong, but though it was mandate about 3-4 years ago.

[john999]

If the VA fails to list or mention evidence in their rating decision that was in the record at the time then you can consider that they have not reviewed it. This safisfies two of the three prongs of a CUE. The other prong is the one that states this unreviewd evidence would have made an undebatable difference in the outcome of the decision. Many stumble over the word "undebatable". What does it mean in context of a VA decision? That is not so simple and case law provides some answers. The VA maintains that any evidence against the vet no matter how trivial makes an outcome debatable. If you have ten psychiatrists saying the vet is 100% and a ward flunky that says the vet seemed ok then the outcome is debatable. Is this justice?

[chinavet]

Seems to run counter to the tie goes to the Vet rule that governs appeals. There seems to be no standard of practice that runs across the board....

[john999]

Rules and standards for CUE are very different than standard appeal.