Requesting The Va To Call Cue On Itself

[Berta]

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 17^th 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 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.

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 January 19, 2013 by Berta

[john999]

I have an appeal that will probably end up at federal court. The CAVC is whipping out decisions and I don't know how they do it. I see decisions my Judge Hagel made within the last 5 months that were assigned to him after my case was assigned to him. If you have a claim you believe in and can get a lawyer to believe in it then we must be prepared to go all the way if we live that long.

John

[Quint7]

I love the 'consideration of evidence' given by VA.

On the 6th of this month, exactly 18 years and 11 months to the day after I got out of the Marines (and my claim was filed) I received my BVA decision denying a EED (raising my currently 20% SC right knee from 0% for 1994-2006). The 'judge' said that evidence was considered properly back then and that I had been rated based on my SMR's ('failure to show for exam' because of a post office issue with the notice back in 1994). He, like the rater in 1994, focused on one sentence from my discharge exam (done 3 months before my discharge) where the Corpsman wrote 'says knee isn't a problem right now' (which I did say as I ignorantly didn't want to take a chance on a medical hold), ignoring years worth of treatment. He did at least mention that I had treatment for the knee after the final physical, but totally dismissed it as a one time occurance. Chrondomalacia, patella femoral syndrome, probably 2-3 other diagnoses in my SMR and a statement from a doc in the middle of my 6 year enlistment saying right in my records that I had a problem for the 2 previous years but it 'wasn't severe enough to rate a medical board so unfortunately nothing can be done' (i.e. suck it up Marine, which I did, turns out I had torn cartilage since 1989 and have had 3 surgeries for it since 2006 when an MRI finally found it). I honestly think most VA employees think unless you have been shot or blown up you can't have an injury and they all have no real working knowledge of just how physically demanding being in one of the combat arms generally is (no offense to those other MOS's) nor the 'suck it up' mentality that permeates all ranks. Were I to have kids and they joined I would tell them again and again to keep as complete of a journal as possible of every single time they so much as pulled a muscle, treated by medical personnel or not, just to show that the average enlisted person has dozens of injuries over the course of even a regular 4 year enlistment and to submit it as evidence. Even if it is one sentence per incident with the date and injury (pulled left hamstring doing PT at Camp Pendleton, 6/14/13, etc.) having a real, handwritten personal record vs a SMR for a worst case situation like mine where SMR's are the only thing they use would be pretty hard for VA to ignore. Not that they wouldn't.

The thing that really got me was the condescending wording of the entire opinion. Had I known back in 2006 what this site has taught me I would say I was a 3 to 1 lock for that EED, but bad advice from 'service reps' and I lose. I considered a CUE but was advised against it by my rep and a DRO (informal hearing so no record of it). C'est la vie I guess but thank you Berta and everyone here for always fighting the good fight. The VA will never see the Vet as deserving and work as advocates for our claims, they see us all as leaches, like we are taking money out of their own pockets instead of receiving the compensation we rate by law.

Sorry if that is kinda off topic all.

[Berta]

bumping it up so I can find it faster......

I am preparing a Go Cue Yourself claim for a vet in our TDIU forum and although it is almost finished, I want to make sure I leave no stone uncovered.

It is a very easy claim to prepare but the legal citations take time and they are the icing on the cake.Yum Yum

I got MY PC upgraded recently and although this claim is on my PC somewhere , I am here more then in my doc files.

[Commander Bob]

Thank you Berta, for answering my question too. "BVA CUEs, If a claimant feels the BVA made a CUE,they have to file a CUE Motion on that with the BVA ... page 14:" . I would have never found that with out your posting.

April 23rd, I won my BVA case, " Benefit granted in fullI", however, I found 2 CUEs on my BVA decision. I am waiting for the award letter to see if I should go forward with a BVA CUE request, if I am not satisfied with the total outcome.

After 45 years of distraction etc, I am seeking closure from this whole VA mess. However, If need be, I will press on.

You are truly inspiring, Berta. Your years of service to all of us is priceless.

My most positive thoughts are with you this Memorial Day, and always.

Kind regards,

C.B.

Edited May 25, 2014 by Commander Bob

[Berta]

Thank YOU!!!!!! Commander Bob.

BVA does commit CUE errors......but not as many, in my opinion, as the ROs do.

And they seem more willing to deal with a CUE challenge than the ROs...because they are lawyers and dont like to make legal errors that the court could possibly catch.

[dav_marine72]

Thanks Berta. Copying the template now.