tdiu Big Question On A Cue

[Hollis]

I just back from my VSO, I was with him for about 11/2 hours. We found several mistakes the VA has made over the passed several years. UPDATE: in 1984 I was denied SC for hearing loss and tinitus, they just sent me the letter saying I was denied. I being young and dumb at the time said the hell with it. In 2009 I asked that my claim be reopen and it was. I had to jump thru the loops to prove my nexus. MY SMR shows I had slight hearing loss when I went into the service and that was the reason I was denied. I also was never given a C&P, I have documentation from memos from inside the VA to cancell my C&P. I have filed a cue and NOD 2-3 times. still they are said it was preexisting. But the kicker, they grated me my SC based on the that it was agaggravated due to my time in service. My ETS physical shows that my hearing was pencil in showing all "0" (better than super man) in all areas. So I have my SMR show slight hearing going in and granted SC for aggravation and exiting the service showing I have great hearing .My VSO said I might want to send this thru one of my SENATORS OR REPRESENTATIVES, however he warned me that the VA might retaliate and not grant me my TDIU if I show how wrong and flawed the were, and EMbarrassed them in A congressional investigation.. BTW one of my senator in on the veteran affairs board. So my question is, and I only asking for opinions here, should I file this with my senator that sits on the VA board or just hope I can get TDUI. I know the back pay would be large, vs. THE MONTHY CHECK of 100%. I know it all would be nice, and the money is seconary right now, I just want justis.

Thanks,

Hollis

Dog Handler 38th sdp

[Berta]

I respectfully disagree of course ,with you PR, knowing the superb advocate you truly are,

and cant wait to ask the VA to continue to CUE themselves again , right away, during the appeal period, if my next decision is wrong due to a legal error.

I have kicked this mule enough here.

[Capt.]

Hello All,,,,,, I knew this was going to get something going. So here is what is happening . I am deciding on going against my lawyer on the QUE issue and possibly filing for "in process" QUE and note that prejudicial treatment may have occurred. I won't get into all the details. But I am almost at the point that VA has given a wrong diagnosis and assignment of a "new Disease" which has caused my PH diagnosis and future award of 100 percent to be totally clouded by the recent SSOC and appeals process. I deep down feel the VARO may .....may reconsider if I send them a letter to the Service Manager showing the ssoc and the award letter violations and if they cannot correct the "error" issue a new SSOC and AWARD letter then send copies to VBA in Washington and the OIG.

I want to at least give the VARO a chance to correct the mistake. I am also going to add that because the Asthma notation has been made that my health and treatment may end up with a possible Malpractice suit of which I do not want to do AGAIN...... but my health could suffer if the regional office "Diagnosed me with Asthma" and launches some type of treatment program. I also would bring up that according to the 38CFRs the Regional Office may not make a diagnose of a medical condition. I cannot find the 38 CFR concerning this so maybe Carlie or Berta or someone has it stored on Hadit archives .

Next ,,,, I believe that the law and ruling give ambiguous interpretation , possibly from each Regional Office. Some allowing the QUE before the end of the claim process and some not allowing. This is very confusing as I was expecting and I do not want to get Berta upset or Phillip as both have had experience with this and the law does have a couple of roads left open for the interpretation and decision process.

Ok,,,,so now I have a lot on the dinner table to get something that is both adversarial to my claim, possibly harmful to my health if treated wrong and not legally diagnosed.

Once again thank you all and this discussion opens the door to see the real problems with QUE and what looks like is done individually and with different VAROs operating with different type decisions. NEVER GIVE UP. God Bless, C.C.

[Capt.]

Hello Hollis,,,,,I also wanted to just say that I had no luck with any Congress critters and that was all 3 of them. It actually may have hurt me in the long run. I also see this CUE issue ....Hey Phillip ,,,I hit the right keyboard button....lol.,,,, as being a big deal as we see by all the post on it. I think it is a grey area of VA that is handled differently by each VARO and obviously our members that have posted have had various outcomes that lets VA to become even more confusing. Berta , I am going to see if NVLSP has any words of wisdom and left a message for Ron to call me. I also have the NVLSP manuels and am going to research them for the CUE issues. I may be taking this same route you did and see what happens. It is probably going to upset my lawyer but can't do anything about it right now as this is more important. Hollis I will let you know what I decide to do and if you want to take a chance on following after myself. No use both of us getting in trouble with stepping out on a limb. Just try and hang in there and NEVER GIVE UP. God Bless, C.C.

Edited February 26, 2013 by Capt.Contaminate

[Hollis]

Thanks CC, I did pm one of the ladies and asked if I could send her my papers, and asked if she look over it and advise me. I also offer to pay for her time. All I got back from her was "no can do". So as of now I am just sitting on it.

Good luck on yours.

[Philip Rogers]

I respectfully disagree of course ,with you PR, knowing the superb advocate you truly are,

and cant wait to ask the VA to continue to CUE themselves again , right away, during the appeal period, if my next decision is wrong due to a legal error.

I have kicked this mule enough here.

Berta - just curious what you disagree with??

pr

[Berta]

PR... just this part about the decisions being 'final' first.:

"I'm going to go out on a limb, here. In order for the claimant to
pursue a claim of CUE (not QUE, sorry Capt!) the decision needs to be
final, first. The definition of CUE is different for the VA's side of
it.":

" They can call it a CUE anytime they want because they can apply the
term "clear and unmistakable error" in the normal sense of the phrase. "

I do agree with this:

"Remember VSR's are not lawyers, they just apply the rules as "they"
perceive them and can correct them when they want"

but I want to add , the VA will correct legal errors in any decision they issue ,still in the appellate period ,if they are forced to.

Many years ago VA made a CUE in my DIC retro. I appealed it but they denied at the RO and I just figured maybe they were right.

What a dope I was then.

When I reopened my claim in 2003,for an additional malpracticed condition my husband had that would warrant a direct SC death and trump the Section 1151 FTCA death, the Regional Counsel in Buffalo, Jeff Whiting at that time, was contacted by the VA because I had raised the former malpractice issues yet this claim could not be filed under under Sec 1151. That was what my SMC CUE was for, filed a few months later.

Jeff was contacted I guess by the RO because I probably had stated in the claim references to 'when VA killed my husband in 1994' or words to that affect, and then I had enclosed the evidence to support that.......along with a statement from the BVA as to my offset.

The claim was for undiagnosed and untreated DMII from AO contributing to my husband's death .

It was malractice but I could not shape the claim that way.

maybe the RO had already removed my FTCA and past 1151 stuff from my C file.

I suddenly got over 40 thousand retro in a 3 week period because Jeff , the RC, had read my past denied DIC retro claim, checked the facts out, and then ordered the VA to pay me what they owed me under a CUE within the unappealed denial I got.

When I won the 2003 claim the RO again failed to support the regulations regarding my FTCA offset.I could have asked them to CUE themselves on this situation as well as the one the RC handled.

Instead I went to the Top Guns lawyers at the Office of General COunsel.

They were the ones who had VA CUE the offset denial and I got my cash. Between these 2 issues above I received over 100 thousand dollars the VA owed me ,and then significant a total 5 figure award regarding my REPS, Military school Chapter 35 refund, funeral money etc etc....

SInce the RC and the OGC lawyers, as well as the VA itself can CUE a decision ,whether in the appeal period or under the 38 USC 5107 criteria ( as a denied and unappealed claim,

I have full confidence that I can do that too and would not have received my Nehmer award, another 5 figure award last year, if I ad not Forced the VA to CUE itself on their initial ludicrous denial of my AO IHD death claim.

If any of above entities, the RC here in NY, the OGC in DC, or myself, had just sat on our thumbs, I would be out of close to 200 thousand bucks....the money my husband's service earned , which by VA case law, is mine.

This is one reason why I went to a war school. We are on a battlefield ,as claimants, not ALL of us, just Some of us, and the VA truly wants us to be docile and ignorant of the laws that protect us and that warrant our benefits.I can see that in some of the ludicrous decisions I have had over the past 2 decades. They even tried to make up a regulation when I filed my SMC CUE claim. When I asked them to produce the reg, they couldnt and I won that claim anyhow.

I dont think the VA discriminates against us widows...I think they just treat us like crap sometimes, the same way they treat some veterans.

I consider the regs and laws to be the best weapons we have, along with the best medical evidence we can get.

I cant wait to see if they bugger up my pending issues again. I save it all for the day I go to the H VAC in DC in person and give testimony as to how grossly incompetent ,in some cases, they really are.

I have been working at the local VAMC and wont be here much this week...so please don't think my absence means I am pissed at anyone. far from it....I just have alot on my plate.

Edited February 26, 2013 by Berta