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

[Berta]

This is your recent award:

DOCKET NO. 10-41 610 DATE: December 17, 2019 ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for necrotizing pancreatitis as a result of VA treatment is granted.

 

Entitlement to service connection for a psychiatric disorder, to include an anxiety or depressive disorder is granted.

https://www.va.gov/vetapp19/files12/19194307.txt

BVA remanded it for three other issues.

I suggest that you work on those remanded issues as I see no basis for a CUE claim which could only be filed on the  denial ,if the past denial was based on the exact same disabiity as claimed in the original claim. 

Regarding 1151 awards:

"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."

https://www.law.cornell.edu/uscode/text/38/5110

You did not put the EED VA gave you into the post you made.

I am assuming it is the date "entitlement arose", by virtue of the IMO/IME you re opened the claim with.

The date entitlement arose is searchable here and discussed many times in the past at hadit.

I also believe you are out of the one year NOD time frame, I think it was up this past December-but I do not know what you would have nodded anyhow.

If the original claim had been for the same exact disability they awarded 1151 under, then the VA per M21-1MR is bound to consider any past denials on the same awarded disability.

That is how veterans can get a better EED with a re opened and granted claim.

 

[Berta]

Just to add- I found CUE in the old SOC denial (2010)( When the VA admitted that the ERCP had caused the Necrotizing pancreatitis) in past discussions here -

In 2010 went to the BVA and in seconds I found a Section 1151 awarded  BVA case and posted it here with the exact same medical  SOC wording for the exact same 'outcome' and for the exact same additional disability you have.

There  was definitely a CUE in the 2010 decision.

but now  I do not think you filed that CUE-

This claim was awarded on a Re opened claim by the BVA. not by a CUE claim.

Perhaps your vet rep would want to revisit the SOC. ( I believe the date of it was 2010)

[retiredat44]

I know it has been a long while. I just wanted to make this part clear. My paid rep said he would no longer help file for me. I am on my own. I could no longer get any reason why he wil not file. if I file I am on my own. I have the papers. I filed in 2009 for the Necrotizing Pancreatitis. I have the papers. They said the VA said they would only go back to 2012. I am afraid they might find a way to screw me over if I filed. I am also afraid the pressure of the fight my give me a stroke. Yes, I know it sounds nuts, but I really feel sick and every little bit of aggravation hurts. Bad. Now I have to worry that if I die before 10 years is up on my rating, my family will not get the benefits. I have to live until at least June 12, 2022 to make it 10 years. I know I sound paranoid, but often I feel really sick. Besides just sick every day. The VA really knows how to torture the sick. ANWAYS, THANX FOR THE ADVICE. sORRY I do not stick around and I disappear for long stretches. I am spending more time just surviving.

Now I was approved for community care, first appointment coming up next week. The VA stil says I casnnot get an primary doctor close to me, and they offered community care and I accepted. It is a local hsoptial 100 miles closer to my home. Also, since this pandemic, they stopepd doing al my tests and care I was receiving and was told I needed every year. I hope they help me, as I get worse, with mor echest pains, and legs pains, I often have to sleep with my leggs on the floor and my body in bed, 1/2 and 1/2. The pain is too much and horrible very often. My primary care doctor at the VA retired, and they tried to give me to a doctor who was very bad. The local hospital treats me good. I hope they don't scre me around. Pain meds, etc.

[Berta]

"Now I have to worry that if I die before 10 years is up on my rating, my family will not get the benefits. I have to live until at least June 12, 2022 to make it 10 years. I know I sound paranoid, but often I feel really sick."

That "ten year"applies only to to direct service connected disabilities.I guess you mean you are 100% or TDIU due you your SC disabilities???

Section 1151 awards have very limited ancillary benefits.

BUT If you die however with the 1151 Necrotizing pancreatitis, as causing or substantially contributing to your death per the death certificate, your spouse will get 1151 DIC.

She will have to apply for it that way, and substitute herself as the claim for any pending claims as well, at your death.

I gave you years of help on the 1151 issue-and you finally succeeded.

Also I  gave you advice in another fairly recent thread you opened here.

I will try to find that thread.

 

[Berta]

I made the point in your Short Note thread-

"what I really hope for Steve, is that the TDIU for SC brings a 100% status AND P & T so that Chapter 35 and CHAMPVA will kick in for your dependents."

Someone here suggested your family would be eligible for CHAMPVA and DEA, but that comes only with a direct 100% or TDIU P & T award. for  direct service connection (s)

And there are multiple threads on your issue here and in the CUE and 1151 forums.

I gave you the best advice I could already on this EED matter , and on the 1151 issues for YEARS, as well as the CUE issues you felt you had and I do not know where those posts are-

It is someone else's turn here to help you.

They will need to review , as I have dome countless times, all of your posts.

But I believe even your lawyer ,or VSO would agree with my advice on that.

 

 

[Berta]

Here is a link to some of your posts from ten or more years ago-

I have no idea where my last post to you is-

if someone finds it , it is basically the answer again, to your situation.

I found no CUE scenario nor any way you could attain a better EED.

I hope someone here will take the time to find it- and they might have an additional opinion, different from mine-