C File Question

[Berta]

In M21-1MR,Part1,Chapter 5,Section F, there is an Exhibit called the “Certification Worksheet”.

This is a 6 page “sample” worksheet document , with 86 Yes or No questions and someone at the RO has to check off the Y/N boxes and get it signed off prior to any BVA transfer.

Not only is this document ,in my opinion, the key to numerous errors that can occur in processing a claim prior to transfer, the M21-1MR Worksheet sample oddly states right on top :

“(NOTE: Reverse file this document in the center of the claims folder until final BVA disposition.)”

By filing it as reversed,I assume it would therefore not appear in any copy of the claims file that a veteran has requested.

By putting it into the “center” of what can often be a voluminous claims folder, I assume that the ROs don't want anyone to see this document

My question is, has anyone here, who was set for a BVA transfer, ever seen a Certification Worksheet in a copy of their C file?

The Certification Worksheet can be found here under # 31, Exhibit 1:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDAQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart1%2Fch05%2Fch05_secf.doc&ei=J_7BUI6IL4iArAGWvYHQBQ&usg=AFQjCNFYph_QVX4UVvYlKuKn9eqBU6EvdA

[carlie]

Berta,

I have never seen one in any of the c-files I have looked over,

but that is most likely because once issues were granted at

the BVA level - we had no need to view the c-file again, and it

would not have been in our copies, since it had not yet been

certified.

I hope this makes sense.

[Berta]

Yes that does make sense.

I would think a POA,however, preparing a 646 prior to BVA transfer, would definitely want to read the I-8 Certification worksheet to see if the worksheet really reflects all the steps, that are in the 86 questions on it ,are properly accounted for.

I feel these worksheets are often so deficient that they ultimately are cause of many remands.

I made an error here some time ago -I think I said my AO IHD denial took 3-4 weeks to become an award letter because I asked the VA to CUE itself due to legal error in the denial.

I formally filed the request for VA to CUE itself on December 6th 2011 and the award letter was dated January 17th 2012.

I had found out by December 22, 2011,from the VA, that I had reversed their decision, so that is where I got the three weeks I think. Sorry if I misled anyone on that timeframe.

It is my opinion, based solely on my personal experience,that if the VA makes a Legal error in their initial decision on a claim,that causes a denial, the VA can be requested to call a Clear and Unmistakable error on itself ,by citing the legal error they committed and a statement as to how that error manifestedly altered the outcome,prior to filing a NOD but within the appeal period.

My recent request of this nature was that one statement in my AO IHD posthumous award letter caused a manifested outcome of an additional retro amount to be 'overlooked'.

I stated:

"The VA's CUE lies within this statement on page 2 of the January 17^th,2012 decision :

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. Exhibit A

That is wrong based on all evidence in VA's possession at the time of the veteran's death."

I then listed and enclosed 13 separate documents of legal and medical evidence ,in VA's possession at time of my husband's death to show beyond a doubt that his 1151 CVA was 100% P & T from August 1992 to October 1994.

I cited 38 USC 4.6 as the regulation they broke.I enclosed 13 pieces of evidence starting with

a letter dated September 13, 1994 from R. J. Vogel, Under Secretary for Benefits, Veterans Benefits Administration, Washington, DC, to my husband, confirming he was found to be Permanently and totally disabled by a NSC stroke (which became a 1151 stroke when my 2004 CUE claim was awarded).Exhibit A

I dont expect a fast response on this because the jurisdiction has to be determined yet.The decision came from Nehmer division in Philadelhia but my AOJ is Buffalo RO and Rick Spataro (NVLSP) said to send this request to both VAROs to see who holds actual jurisdiction.He noted it had worked for me in Dec 2011 so why not try this tactic again.

I feel strongly ,that in some cases, this type of request can certainly move a claim faster at the regional level and could obviously stave of the long appeal process if the CUE request reverses the original denial.

A formal NOD should still be timely filed if needed, but my NOD ,if needed, will continue the argument of VA's CUE in their last decision.

There is no regulation for this type of action. But it has worked for me so it might sure work for others and keep some claims out o the backlog.

Edited December 8, 2012 by Berta (see edit history)

[carlie]

Berta,

Good job and a great post.

It will help others down the road in beginning the appeals process.

You spelled it out in layman's terms for much easier understanding.