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Requesting The Va To Call Cue On Itself

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Berta

Question

This is part of my recent CUE issue pending that can be used as a template:

Department of Veterans Affairs October 28,2012

Philadelphia Regional Office

PO Box 8079

Philadelphia ,Pa. 19101 Re: 310/3POST/CG

Nehmer decision dated January 17,2012

C # XX XXX XXX

and

Department of Veterans Affairs Original Agency of Jurisdiction

Regional Office

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202 2478

REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR JANUARY 17th 2012 DECISION

I was advised by NVLSP to send my correspondence to both above VAROs to determine who holds jurisdiction over this request .

I respectfully request the VA to call a clear and unmistakable error on part of the above January 17,2012 decision from the Philadelphia VARO and to correct it.

This is a separate issue from my recent Section 1151,38 USC claim filed with the Buffalo VARO on September 21, 2012.

I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

The VA's CUE lies within this statement on page 2 of the January 17th,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.

Page One of Seven

The veteran, Rodney F. Simmons was totally and permanently disabled by his August 9,1992 Section 1151 CVA until his death on October 14, 1994. His”residuals”certainly did not alter the medical fact of his total and permanent disability from his Section1151 ,38 USC “ as if service connected” stroke on August 9,1992.

He was certainly housebound and that is not the issue here.

The VA's failure (CUE) to consider and evaluate the evidence VA had in their possession manifestly altered the outcome of the decision referred to above ,January 17,2012, to my detriment as the claimant and surviving spouse of the veteran, Rodney F. Simmons.

CUE regulations are found within 38 USC, 5109A.

The BVA within http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp08/Files5/0844495.txt, clearly

defines the same basis for my request that the VA call a clear and unmistakable error on itself due to an obvious violation of the evidentary requirements of basic VA case law.

As the BVA decision states ,

In part:“The veteran's assertion of CUE is based on VA's failure to

consider highly relevant medical evidence, that is, the RO

denied the existence of medical evidence that was clearly of

record at the time of the rating decision. The Board is

convinced that the RO committed error based on the record and

the law that existed at the time the decision was made and

had the error not been made, the outcome would have been.......

(I went on with some citations regarding BVA decisions as to the LEGAL issue.

I then enclosed Exhibits A through N and explained every exhibit to the VA in terms they could understand and made the point that each piece of evidence I enclosed warranted a 100% rating from Aug 1992 to Oct 1994.

SSDI records, Student Loan discharge, VA Neuro 100% P & T med recs, Letter from Acting Under Sec VA, R. Vogel 1994 letter to the veteran, claims judge, Agent Orange settlement fund, etc etc, the veteran's Voc Rehab records,FTCA stull, MRI, autopsy... real solid stuff.

all clearly stating or revealing medically that the veteran was 100% P & T from Aug 1992 to Oct 1994 due to his CVA which VA admitted they caused under 1151 and FTCA settlement. They owe me more cash.

Even if they loose most of that evidence , any piece could stand alone anyhow.

ALL of the evidence except for one reference (which can be checked) was in VA's possession at time of their CUE in the January 2012 award letter.

Now I dont have to finish that article on this maneuver.

To get VA to CUE itself requires

1. a legal error in a decision challenged DURING the appellate period (meaning the day of the decision and within the NOD timeframe)

2. a legal error that manifested an altered outcome to the claimant's detriment (ie improper retro amount)

3. A formal request that VA CUE the decision, supported by copies of probative legal/medical evidence that was in VA's Possession at time of the decision that the claimant is requesting themselves to CUE. This type of request must be made within the appellate period.

I might post ,my Dec 2011 CUE request too----I did that by Fax,IRIS, and phone with VA Central and don't have a lot of hard copy stuff on it. VA Central turned on that one in 3 weeks.

My 2005 CUE request started out with Fax stating "What the Hell is this," sent to the Director of the Buffalo VARO and IRIS complaint to VA Central and copy in email to my wimpy vet rep.

They (VA)moved on that fast too.

I think that one is documented 2 PCs ago.

If a veteran or surviving spouse like me has a solid leg to stand on, (with evidence of CUE criteria above) they then need to kick the VA in the A-- with their other foot ---during the appellate period. They need to watch the NOD deadline clock too.

VA keeps thousands in comp when vets don't challenge an erroneous decision ,even if it is an award letter.

Either with this maneuver or by preparing their NOD and appeal , shaped ....not for the RO these days, or for the black hole AMC,

but shaped instead, for the BVA.

Due to the critical backlog.

This doesn't stop the NOD clock!

If the VA ignores or farts around with this type of request,without a proper resolve, make sure you file a timely NOD,raising the same legal error issues.

Edited by Berta
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  • HadIt.com Elder

Thanks, Berta, I wanted to contribute to the CUE discussion because the BVA has thrown around terms like "undebateable" even as they admit I had a CUE since all evidence of record was not before the adjudicators at the time of rating. The CAVC is saying that my CUE is just a "reweighing of evidence", and that there is an asumption that all evidence in VA's hands is reviewed. This is typical BS. You have a terrific grasp of the CUE concept as does Carlie and Phil. This is our only shot at justice for these old decisions where we young vets were screwed to the wall by the VA. I went years thinking all I should get was 10% and thinking the VA had used all the evidence my doctor and I had submitted. Now I and thousands of other vets have to jump over a very high wall to get what we could and should have got 30-40 years ago.

John

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Thanks, Berta, I wanted to contribute to the CUE discussion because the BVA has thrown around terms like "undebateable" even as they admit I had a CUE since all evidence of record was not before the adjudicators at the time of rating. The CAVC is saying that my CUE is just a "reweighing of evidence", and that there is an asumption that all evidence in VA's hands is reviewed. This is typical BS. You have a terrific grasp of the CUE concept as does Carlie and Phil. This is our only shot at justice for these old decisions where we young vets were screwed to the wall by the VA. I went years thinking all I should get was 10% and thinking the VA had used all the evidence my doctor and I had submitted. Now I and thousands of other vets have to jump over a very high wall to get what we could and should have got 30-40 years ago.

John

i did the same as john, that is thinking i was getting the correct rate/diagnosis all those years. i too am fighting for CUE. its worth the fight.

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Just to make one point....when they use the wrong diagnosis in the rhetoric for a claim that isnt a CUE. The diagnosis had top have come from a doctor so that is a medical issue and not an issue of being a legal error.

But when they use the wrong diagnostic code for a diagnosis and the DC code provides the veteran a lower rate of comp, due to wrong diagnosis, then that IS a CUE.

Since the Diagnostic codes and also the rating criterias are all in 38 USC and 38 CFR, they are "legal" determinations and not medical ones whenever the rater takes pen in hand and puts the wrong DC and then potentially the wrong % into a decision and therefore has made a legal error, if that error had cost the claim,ant compensation that was based on medical evidence.

I hope that makes sense.

I didnt even get a rating sheet for my last award. Has VA done away with rating sheets for Nehmer claims?

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Just to make one point....when they use the wrong diagnosis in the rhetoric for a claim that isnt a CUE. The diagnosis had top have come from a doctor so that is a medical issue and not an issue of being a legal error.

But when they use the wrong diagnostic code for a diagnosis and the DC code provides the veteran a lower rate of comp, due to wrong diagnosis, then that IS a CUE.

Since the Diagnostic codes and also the rating criterias are all in 38 USC and 38 CFR, they are "legal" determinations and not medical ones whenever the rater takes pen in hand and puts the wrong DC and then potentially the wrong % into a decision and therefore has made a legal error, if that error had cost the claim,ant compensation that was based on medical evidence.

I hope that makes sense.

I didnt even get a rating sheet for my last award. Has VA done away with rating sheets for Nehmer claims?

point taken and understood. congrats on your award

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Can someone point me in the right direction regarding whether or not this is a CUE.

My husband is 100% P&T for IHD but also has an anoxic brain injury.

He then became service connected for dementia secondary to IHD.

In his C&P exam by the VA board certified psychiatrist the Dr. stated YES when asked if the veteran has a diagnosis of traumatic brain injury.

In his rating decision dated Aug 3, 2012 (NOD clock is running out) the reasons for decision states Dementia, status post anoxic brain injury and not TBI which is a very big difference in SMC. The rating decision does not mention anything about TBI.

I do know that the criteria for TBI is from an external force but his residuals are even worse because his brain cells died.

Don't know which way to pursue his claim.

Can anyone help?

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If the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

as within:38 CFR 4.3,4.6

http://cfr.vlex.com/...idence-19774393

by totalling ignoring probative and compelling evidence , the VA has committed a CUE.

I regret I didnt use this tactic on most of the initial decisions I got over the past 15 or 16 years.

What I mean by probative and compelling evidence is

1.having proof you sent the VA a properly prepared independent medical opinions that support the claim with a full medical rationale, done by a doctor with expertise in the filed of the disability. AND VA totally ignored the IMO.

  1. ignoring SSA records that fully support a TDIU claim because they are based sole on the same SC the veteran has.

  2. Ignoring an autopsy

  1. Parcing a C & P exam results...this can be a major problem.....VA left out the actual ending words from a C & P doctor's report once for my original 1151 claim.I raised hell with the doctor and then he read the actual C & P report to me over the phone, and mailed it to me, and his final words ,if VA had not conveniently forgot to put them into the decision....would have led to an award. And eventually did

Years later when I reopened I called him (we had made up) and he agreed with my DMII AO claim but said since I knocked his C & Ps down twice ,there was no way he would be asked to opine on my DMII claim.

  1. Any private medical records that you know the VA has because they asked you to sign an authorization form 21-22 I think the form is, to get them.Yet they did not list as Evidence or consider in the decision.

6 If the VA awarded 70% SC and the veteran is not employed and the VA knew that, but did not mention or consider TDIU, that is usually a CUE they have made.

      1. If the medical evidence warrants a SMC consideration and the VA fails to consider SMC, that is a CUE .the VA has made by violating the Mandatory statute of the SMC regulations.

  1. I recently read a widow's case at the CAVC. The VA upon her reopen for DIC had found her to be an ineligible spouse and denied her claim on that basis They were dead wrong. They had made a CUE in that decision.

9 If the VA sends the wrong amount of retro, along with an audit statement (they are difficult to figure out sometimes), and the manifested outcome meant you got less then you should have in retro they have made a CUE.

I believe, with the enormous pressure on the ROs these days to get the backlog moving, more and more mistakes in initials decision will be made. Mistakes that could raise to the level of asking VA to CUE itself and expecting them to do that.

I think many here disagree with this tactic and if used, the NOD deadline must be met if VA has not properly addressed this type of request within the crucial first year after the decision, but this has worked for me many times and I cant wait to use it again if I have to.

VAROs often dont even read a NOD until a year has passed. Someone at my VARO told me NODs are color coordinated for that year at the VARO to pass...dont know if that is true.

The enemy of VA claimants is not the VA...it is Time.

If a CUE request produces faster results, with no need at all for a NOD within that first year after the date of the decision, in my opinion, the veterans has staved off the long NOD, SOC, DRO, BVA, Remand to VARO 'hamster wheel' ordeal.

Hello, I am wondering if I can get your thoughts. I think I have a good CUE case I am assiting with. I have a vietnam vet that I am helping that applied for benefits in the mid 1970s for nervous condition after a suicide attempt. While in the hospital they had him fill out the form for a claim. He was there for 2 months approximatly. We just found a form that the adjudication officer sent to the VA hospital that he was at requesting his records. 20 days later they denied the claim....clearly not enough time for the VA hosptial to send the records. They sent them about 5 months later after it was already denied. They never informed the veteran of that.

Fast forward to 2011 he makes another claim, gets rated at 30% for ptsd, he files NOD, he gets rated again earlier this year and goes up to 70%. We want to go after for EED. Any thought on whether we should ask them to CUE themselves (i'm thinking yes, but would like to hear what you think since you've been through this.

Thanks so much for any advice!

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