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Requesting The Va To Call Cue On Itself


Berta

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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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On Saturday, February 27, 2016 at 11:34 AM, Berta said:

Autumn, I am sure your attorney does Not know about this tactic....Or unless they are the Nehmer lawyer I dealt with who was very surprised this tactic worked for me.

Or Unless they read hadit.

There is no regulation for it. I won  that above claim earlier this year. Part of it is still in appeals however, But the CUE claim above succeeded.

And two more Go Cue Yourself claims I filed since then also succeed, I am sure all those claims are posted here somewhere.

It is the same premise as a CUE claim filed on an unappealed, decision. The decision ,as in my case, can be an award, containing CUE ,and not even a denial...

If most reps and lawyers understood this basic tactic, it could help reduce the backlog.

It makes sense not to allow VA to get away with a legal error , to a claimants detriment, in a decision that might never need a NOD filed, if someone acts on the legal error with them ASAP.

The above Nehmer decision (2012) resulted from 3 CUEs I filed in 1998 on an award letter.

At that time my former rep said not to NOD the award because "1151s are different from regular claims".

He was wrong but now I realize I could have asked them to CUE themselves on the decision the day after I got it in 1998.

It is like battle,

if the enemy retreats and leaves some of their weapons and other material behind, the weapons and stuff then can be confiscated and used against them in the next battle. That happened a lot in the Civil war....actually probably in every War.

Regulations are VA's paper weapons, but we can use them against VA decisions too.

 

 

 

he may not know of this. i will suggest he view this thread. there may be a weapon or two he can use with the appeal regarding lowball CUE. this particular recent CUE award was via NOD. if that makes any difference.

 

 

 

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 an attorney will not address this issue because it

doesn't exist a cue is final decision Sorry I respond to this

good luck. What ever works that's all mater

 

Edited by RUREADY
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Yes to both.

1.  Correct.   There is no time limit to file a CUE.  

2.  Also correct.  You can not file a CUE on a decision that is not final, such as if its awaiting a Board Remand or pending adjutication.      

3.  However, Berta has done well "Asking VA to CUE themselves" on decisions that are NOT a year old, that is recent decisions, but all agree you should ALSO file a NOD within the year unless you get a favorable result asking VA to cue themselves.  

Edited by broncovet
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*** Please, those that may understand CUE's, the VA, the VA legal system, etc..etc..., and anything to do with effective dates, and I understand the info I may receive is opinions, not legal advice..... (myself recognizing that my asking what other people think about submitting a CUE, and opinions on what I am drafting, which I may or may not use, submit,, is very undecided, as I am a little worried I could make problems that could be irreversible, due to my lack of legal knowledge.)

If I took part of this CUE info, and changed a few items as as a template for my use...

I come up with something like this, very rough draft...

 

Thank you all... I appreciate your insights! 

================

Veteran:
######## ########
###-##-####

Claims and Appeals regarding Necrotizing Pancreatitis and U.S.C. 1151 benefits dated 2012. Actual VA 1151 injuries occurred at the VA Hospital that Veteran was an inpatient from March 2008, to approximately late July 2008, with additional home care nursing that followed appointed to the Veteran by the VA. 
Injuries occurred March 2008 during Pancreas procedures and hospitalizations at VA Hospital, La Jolla, San Diego, California.
Because of extreme serious health issues, Veteran (Myself was unable to file) until 2009 for the necrotizing Pancreatitis and other related issues because of serious health and mobility issues. 
Also, the 1151 claim followed in 2012, after some legal counsel explaining my options during claims and appeals.

I, #######, therefore, submit and ask a CUE on the effective date be changed according to the  following Veterans Laws:

https://law.onecle.com/uscode/38/5110.html
38 USC 5110 - Effective Dates of Awards
 
(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release.

(2)(A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C) This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)(A) The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B) A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

(c) The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

Included are the copies of submitted Documents and received (by the VARO, BVA, and all parties).

Dates of related documents regarding medical evidence, issues, dates, places.
Copies of claims, appeals, showing dates of filings and received by, and dated.

To reiterate:
Veteran is asking for CUE for the effective date to match the date of injuries, the date of filing claims for those injuries and illnesses. And not just to the date of filing the CUE as : 38 USC 5110 - Effective Dates of Awards.

=============
Department of Veterans Affairs Original Agency of Jurisdiction

*** Regional Office

TBD*******

===============
REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR 2019/2020 DECISIONs.

I respectfully request the VA to call a clear and unmistakable error on part of the above 2020 decision from the Portland Oregon VARO/BVA and to correct it.

The VA's CUE lies within this statement on page ## of the December 2019 decision :

“ Entitlement to accrued benefits or 1151 incident under 38 USC 1151 is granted with an evaluation of 100 percent effective from: ***Date. Exhibit A (attached decisions, dates, and documents with the dates of actions by the VA Medical Staff. ***wording to be determined before final draft.)

That the effective date used was wrong based on all evidence in VA's possession at the time of the BVA award.

The veteran, ###### ######## was totally and permanently disabled by this March 2008 Section 1151 _________ **** not yet sure of the wording to use, if any.

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 , December 2019, to my detriment as the claimant.

CUE regulations are found within 38 USC, #####.

==========================


 

 

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