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

[Slowlane]

Sorry for double posts I cant fix it. I live at high elevation and when a strong wind hits my satellite dish that happens.

Have you tried something like a Verison mi-fi instead of the satellite? Worked for me. Slowlane

[Berta]

BigRed stated:

“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. “

They probably denied saying the claim was “not well grounded.”...the previous VCAA mantra that VA used to deny many claims in those days.

That could certainly be the basis for a regular CUE claim, citing 38 CFR 4.6, filed against that older decision.

How do you know VA got the records 5 months later?

I had a similiar situation regarding my recent CUE Yourself Request.

It involved my husband's SSA records and in my Nehmer decision I was quite shocked to learn that VA received those records until about 6 weeks before my husband died although they had the authorization forms for over a year by then.

Is it possible that this veteran was hospitalized while still AD in the Military in the 1970s?

Odd question I know but possible......

Does he have his complete SMRs?

I commend you on what you found, as to the fact that the VA did not have the hospital records when they denied the older claim.

It is amazing what value having a C file copy can be and then carefully going over everything in the C file.

Did the VA, when they awarded the 30% for PTSD ( called a nervous condition in those earlier days) indicate anything at all in that decision or the subsequent 70% decisions as to the older hospital records?

Has the veteran, since, obtained those older VA med recs?

When they awarded the 70% did they consider him for TDIU or was he employed ?

Can you scan and attach the 70% decision, with the vet's permission here? If so , cover all identifying stuff.

The recent decision might not have a CUE basis but that older 1970s decision, if it makes no reference to the VA hospitalization records, in my opinion, does.

In the NOD for the recent decision, if I were you, I would NOD the EDD with the same argument you raised here as to VA not having the older med recs.

You could make a CUE yourself request too on the same basis, to see what VA says on that.

Obviously he had a proven stressor for the SC awards, but I wonder if the stressor was, in fact, those older hospital records, indicating maybe VA has them but never acknowledged them to the veteran. ( hoping he would not challenge the EED)

When I had little NOD time left on my last CUE yourself request,I did file a NOD, asking the VA to address the CUE request first.

I also found the regs for a NOD extension time frame and even asked for the extension for good cause, and if not granted, then VA should consider the NOD as timely filed.

My point was two fold..... the NOD extension reg isnt challenged or used much and it has no definition of what VA considers good cause.

I dont expect the extension and told VA I dont need it if they properly resolve the CUE request.

I did this to see how VA handles these NOD extension requests, and the other reason is that I set this up for a possible BVA decision on the initial request that they CUE the decision.

Although the regulations are the same at the BVA and the VAROs, BVA lawyers have far more expertise then the VAROs in proper interpretations of those regs.

A BVA denial I got many many years ago (I had just won that claim at the RO under a different basis so that claim was moot anyhow) contained a caveat specific to my situation.

I used a copy of the BVA caveat in 2009 to get VA to pay me my FTCA offset.

I sent as well the specific regulations that in my case award the refund of the offset.I know there is no other documented situation like mine was, but still I felt the actual regulations as well as the BVA decision, with the caveat hghlighted, would promptly bring the refund.

I was wrong and had to get the OGC to send the VARO the same regs and BVA statement before they would pay me.

After OGC ordered the refund, the offset refund came ,but that was at least 8 months after the award.

My point is the BVA (and of course the OGC) clearly understood the regulations that applied to my claim and ,since they are lawyers, they are willing and quite able at the BVA, to properly interpret 38 CFR far better, in many cases, then a VARO rater is.

I sure would fight for a better EED for this vet.

Thank you for helping him!

Edited June 14, 2013 by Berta

[Berta]

Gee I meant the VA Mantra ,previous to the VCAA.

Also you should raise the point for any CUE claim you file on the older decision that, with the veteran's hospitalization, that obviously indicated that his PTSD was at a ratable level when he filed that older claim.

SLOWLANE thank you....maybe the next PC will be what you suggested..........

[john999]

The lawyers at CAVC said that before 1992 the VA did not have to list all the evidence they had so you cannot prove they did not consider every bit of evidence before them or even know what was before them. Also, when you can produce evidence the VA did not consider that was in their possession for you to win a CUE there must be no evidence in VA's decision that could make a different decision debatable. Like in my case where the VA has some shreds of notes and hospital records vs a complete medical report from my doctor on their own VA form that completely discusses my disability, its origins, the impact on my employability, dx, prognosis, nexus etc and social and occupational adjustment. The VA says it is still debatable that I got a 10% rating while excluding my doctor's report that said I was 100% disabled and had total impairment in social and occupational adjustment due to psychosis. The VA said I had slight impairment and my doctor says I have complete impairment in all areas. The VA says it is not undebatable that 10% was correct rating. I never got appeal rights and all that jazz back in 1973. They throw it in my face that I could have appealed this decision if I did not like it. I did not even know that I could and I was pretty much living on skid row and don't even remember events until I looked in my C-File and got that sinking feeling of hate that I feel for the way the VA treated me back in the day.

[bigred1]

BigRed stated:

“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. “

They probably denied saying the claim was “not well grounded.”...the previous VCAA mantra that VA used to deny many claims in those days.

The opinion says no service connection found and there is no evidence of the condition.

That could certainly be the basis for a regular CUE claim, citing 38 CFR 4.6, filed against that older decision.

How do you know VA got the records 5 months later?

It's time stamped 5 months later, after they denied the claim already. I had the VA even confirm the date b/c it was difficult to even read.

I had a similiar situation regarding my recent CUE Yourself Request.

It involved my husband's SSA records and in my Nehmer decision I was quite shocked to learn that VA received those records until about 6 weeks before my husband died although they had the authorization forms for over a year by then.

Is it possible that this veteran was hospitalized while still AD in the Military in the 1970s?

What does AD mean? In his service records I do see two doctors notes that state he was complaining about nausea, and I also see a notation (if I am deciphering it correctly) of chronic GI. He also told me he went to the infermary on base for earaches/infections but the SMR don't seem to contain anything about that. I am not sure if we have his complete SMR, how can we make sure of that? We have his cfile and I have the SMRs that were in his Cfile.

Odd question I know but possible......

Does he have his complete SMRs?

I don't know, again, the SMRs were in his Cfile. Knowing the VA, probably not though.

I commend you on what you found, as to the fact that the VA did not have the hospital records when they denied the older claim.

It is amazing what value having a C file copy can be and then carefully going over everything in the C file.

Actually it wasn't in his Cfile. It was in his medical records that were in Missouri.The VA never obtained them. He was the one who called over there and got someone to look for him and sent it to us. Crazy right?

Did the VA, when they awarded the 30% for PTSD ( called a nervous condition in those earlier days) indicate anything at all in that decision or the subsequent 70% decisions as to the older hospital records?

No I keep saying that to the appeals coach and the director (he is assisting us in locating records, etc) They never addressed in any decision those 2 hospital summaries. His first medical C&P referred to them, but the rating officer did not.

Has the veteran, since, obtained those older VA med recs?

Yes, they are not all there, but we have some records, about 10 pages. He was in the hospital for 2 months so there were definitely more but that's all they have. We just found them in Neosho, MO.

When they awarded the 70% did they consider him for TDIU or was he employed ?

Yes they did, he did not know they were rating him on that when he went to the exam. He was not working he retired a few months before. He retired under stress though and stated that to the medical doctor at his C&P exam but they used other things against him and didn't mention any of his statments about how he was stressed and having crying episodes right before he retired.

Can you scan and attach the 70% decision, with the vet's permission here? If so , cover all identifying stuff.

The recent decision might not have a CUE basis but that older 1970s decision, if it makes no reference to the VA hospitalization records, in my opinion, does.

I agree, I think so too.

In the NOD for the recent decision, if I were you, I would NOD the EDD with the same argument you raised here as to VA not having the older med recs.

The Veteran did NOD but didn't go into specifics. I only recently starting helping him, I am going to send a more detailed letter this week with all our evidence and arguments.

You could make a CUE yourself request too on the same basis, to see what VA says on that.

Obviously he had a proven stressor for the SC awards, but I wonder if the stressor was, in fact, those older hospital records, indicating maybe VA has them but never acknowledged them to the veteran. ( hoping he would not challenge the EED)

When I had little NOD time left on my last CUE yourself request,I did file a NOD, asking the VA to address the CUE request first.

I also found the regs for a NOD extension time frame and even asked for the extension for good cause, and if not granted, then VA should consider the NOD as timely filed.

My point was two fold..... the NOD extension reg isnt challenged or used much and it has no definition of what VA considers good cause.

Good point, thank you!

I dont expect the extension and told VA I dont need it if they properly resolve the CUE request.

I did this to see how VA handles these NOD extension requests, and the other reason is that I set this up for a possible BVA decision on the initial request that they CUE the decision.

Although the regulations are the same at the BVA and the VAROs, BVA lawyers have far more expertise then the VAROs in proper interpretations of those regs.

A BVA denial I got many many years ago (I had just won that claim at the RO under a different basis so that claim was moot anyhow) contained a caveat specific to my situation.

I used a copy of the BVA caveat in 2009 to get VA to pay me my FTCA offset.

I sent as well the specific regulations that in my case award the refund of the offset.I know there is no other documented situation like mine was, but still I felt the actual regulations as well as the BVA decision, with the caveat hghlighted, would promptly bring the refund.

I was wrong and had to get the OGC to send the VARO the same regs and BVA statement before they would pay me.

After OGC ordered the refund, the offset refund came ,but that was at least 8 months after the award.

My point is the BVA (and of course the OGC) clearly understood the regulations that applied to my claim and ,since they are lawyers, they are willing and quite able at the BVA, to properly interpret 38 CFR far better, in many cases, then a VARO rater is.

I sure would fight for a better EED for this vet.

Thank you for helping him!

I have been happy to help!! He's a great guy and the more I find out, the VA really is just so messed up it's such an injustice. I really feel for the Veterans that have severe PTSD, like the homeless. They really have no one helping them, it's so sad. Thank you so much for your input!!!

[bigred1]

The lawyers at CAVC said that before 1992 the VA did not have to list all the evidence they had so you cannot prove they did not consider every bit of evidence before them or even know what was before them. Also, when you can produce evidence the VA did not consider that was in their possession for you to win a CUE there must be no evidence in VA's decision that could make a different decision debatable. Like in my case where the VA has some shreds of notes and hospital records vs a complete medical report from my doctor on their own VA form that completely discusses my disability, its origins, the impact on my employability, dx, prognosis, nexus etc and social and occupational adjustment. The VA says it is still debatable that I got a 10% rating while excluding my doctor's report that said I was 100% disabled and had total impairment in social and occupational adjustment due to psychosis. The VA said I had slight impairment and my doctor says I have complete impairment in all areas. The VA says it is not undebatable that 10% was correct rating. I never got appeal rights and all that jazz back in 1973. They throw it in my face that I could have appealed this decision if I did not like it. I did not even know that I could and I was pretty much living on skid row and don't even remember events until I looked in my C-File and got that sinking feeling of hate that I feel for the way the VA treated me back in the day.

Geez that is terrible John! Do you still have an appeal going? I"m so sorry all that happened to you! Re: the evidence, well apparently they did not even receive the 2 hospital discharge summaries until 5 months later after the decision was made. Basically, the veteran was hospitalized, he filled out an application for benefits, the AO got the app, sent a request form to the hosptial for the records, made a decision 20 days later (the veteran was still in the hospital), 5 months later the 2 hospital summaries were received. They never did anything with those records. They didn't reopen the claim, they didn't notify the veteran, they just put it in his cfile and then ignored it. When he went in 2011 to get his 1st c&P exam, they ignored it in the evidence, didn't even mention or list them even though it was in the cfile and the doctor talked about it in his report.

I just got a letter today saying they are woking on his appeal for eed and for us to send any additional evidence. So I will be sending out my letter back this week along with all the evidence we gathered and I will formulate my arguments. Thanks for all the input! If there is anything anyone wants to add, please let me know.