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

[broncovet]

Thank you Berta, for answering my question. I will add that I think your idea to ask the VA to CUE themselves, is frankly, brilliant.

We know the VA can/does "yell CUE" if/when benefits are erroneously awarded to a Vet. And, I will agree that on millions of claims there has got to be mistakes and there needs to be a way to rectify them.

I also agree there needs to be a way for Vets to "resolve and erroneous denial/lowball" without 4 or more years of appealate review.

I agree that Vets should try this..and it might just work.

[Slowlane]

RO keeps asking for information from you ......but......when you send it they don't read it or acknowledge it.

[Berta]

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.

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

4. Ignoring an autopsy

2. 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.

2. 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. 1. 7. 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.

8. 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.

[john999]

The VA ignored medical evidence from my treating doctor 40 years ago. I filed a CUE. The BVA agreed it was a CUE. The BVA agreed that my doctor's evidence was ignored, but said it was not "undebatable" that this evidence would have changed the outcome of my decision. My CUE was "denied" and not "dismissed". It is sitting at CAVC now. The evidence from my doctor that the VA ignored was the only evidence that addressed both social and occupational aspects of my disability. The VA's evidence was just notes from doctors and other VA workers on psychiatric ward. According to the VA note of an unidentified ward clerk is just as compelling as the report of a clinical psychologist. The BVA says if there is slightest shred of evidence to contradict any evidence you produce then your evidence is not undebatable, therefore, not a CUE. This is a standard that is almost impossible to meet.

John

[Berta]

I see that differently John:

"The BVA says if there is slightest shred of evidence to contradict any evidence you produce then your evidence is not undebatable, therefore, not a CUE. This is a standard that is almost impossible to meet."

My SMC CUE denials contradicted some evidence (which was established VA case law) and ignored the prime facie probative evidence.

I do see this as fact in some CUE claims that are denied at the BVA:

"but said it was not "undebatable" that this evidence would have changed the outcome of my decision. My CUE was "denied" and not "dismissed". It is sitting at CAVC now"

In VAOLA that means the medical evidence at time of alleged CUE and in the hands of the VA (no matter what part of the VA had it)did not raise to a ratable or compensable level that could have generated retro SC comp. from the original denial.

Then again the BVA cant make medical judgements or substitute their opinion for that of a medical professional I think that case is Colviin V Brown.

"The evidence from my doctor that the VA ignored was the only evidence that addressed both social and occupational aspects of my disability"

If that evidence had manifestedly changed the outcome, that is a bonafide CUE and you should succeed.

I admire your willingness to fight this.

Dont forget my SMC CUE claim took 8 years before a RO even read my legal evidence.And it wasnt my AOJ RO either.

But they also made a CUE in that award.

The evidence list with that decision was very long as it was also the AO IHD award too, but right away I could see they again had missed critical evidence and I filed another CUE against them during the appellate process.

I think they do this stuff deliberately to see if we will buy what they are selling.

It is never regarding minor retro issues. They forgot about 40 thousand with my CUE award and it was very easy to point out their legal error to them.

It will be interesting to see what they come up with next on my issues. I like war games.

Edited March 13, 2013 by Berta

[Berta]

Yep it is Colvin V Brown...basic VA 101 case law.

Colvin can be found at the US CAVC . This is a BVA interpretation of it

“Additionally, at the time of the December 1955 decision, the 
Board was not precluded from relying upon its own medical 
judgment to support its conclusions.  Colvin v. Derwinski, 1 Vet. 
App. 171 (1991) (Board cannot substitute its own medical judgment 
for that of medical professionals).  A medical member of the 
Board participated in the December 1955 Board decision and was a 
signatory to that decision.  His signature signified agreement 
with the conclusions that the evidence, considered with the 
application of generally accepted medical principles, did not 
demonstrate that the Veteran had a psychiatric disability that 
should have been service-connected.  Bowyer v. Brown, 7 Vet. App. 
549 (1995) (Board's position was substantially justified in a 
pre-Colvin decision in relying on its own medical judgment).  As 
the December 1955 decision was ascribed to by the medical member 
of the panel, it cannot be said that all the evidence of record 
supported the moving party's position.  The opinion that the 
evidence was insufficient to establish service connection was 
supported by the medical member of the panel, and the Board 
apparently relied on his medical judgment in deciding the appeal.”

http://www.va.gov/vetapp11/Files1/1101465.txt