Va May Have Cue'd Itself

[Papa]

I got an email from a very reliable source that informed me that his/her office has decided that they had screwed up my claim for my Back. I was finally awarded in Dec 2012, with retro back to 2011. But, I had injured my Back in 1969, and upon discharge, I had put in a claim, but would always get the same rely that I did not injure my Back in the service. There is nothing in my medical records. Even after sending them copies of the medical records, still denied. Gave up. Could not get any VSO to help. My source said that he/she does not believe it will go back to my first claim, but maybe to the claim that I put in prior to the 2011 claim. BTW, I did not ask for this, and it comes as a total surprise.

Papa

[Chuck75]

Well, if they do award based upon the 2011 date, you can always wait until they start paying you additional compensation, if any, and then NOD the EDD, citing the earlier evidence as in "constructive custody" and the earlier dates that it was sent to them.

I have a different issue going at the moment that is about as bad as far as time and proof.

I had a claim filed in 1969, via a state veteran's department, which disappeared from my file. I've found some of the secondary records in the file copy, including that a VA "C" file number was assigned, and that show something was filed, and from them know the exact date the VA used. The claim was denied, for reasons unknown, and the denial paperwork sent to an incorrect address. We think that the denial was based upon the fact that the medical records were at a reserve center, and the VA only queried the records center in St Louis. It's an SMK issue.

Edited May 21, 2013 by Chuck75

[chrome_305]

I got an email from a very reliable source that informed me that his/her office has decided that they had screwed up my claim for my Back. I was finally awarded in Dec 2012, with retro back to 2011. But, I had injured my Back in 1969, and upon discharge, I had put in a claim, but would always get the same rely that I did not injure my Back in the service. There is nothing in my medical records. Even after sending them copies of the medical records, still denied. Gave up. Could not get any VSO to help. My source said that he/she does not believe it will go back to my first claim, but maybe to the claim that I put in prior to the 2011 claim. BTW, I did not ask for this, and it comes as a total surprise.

Papa

:O Same kind of story as me except VA hasn't ever called. lol.

I put in a claim in 2006 that was denied service connection but awarded medication for Dysthymic Disorder. Sent them info that I have a Diagnosis from a VA doc which was within one year of service but still denied .Sent them proof that they even say I have a diagnosis within one year in their rating decision letter. Yet i'm still denied. Then I gave up. tried again in 2008 denied. Went to VSO with proof and told him my story only to see him do nothing really but make copies and get forms ready.

Now, I just keep sending the C&P report from 2006 as new evidence in hopes it lands in the right person hands in the VA who can read.

Edited May 21, 2013 by chrome_305

[Berta]

Papa, since they did finally service connect your back injury, obviously the VA did find enough medical evidence of inservice injury to do that.

“awarded in Dec 2012, with retro back to 2011. “

“My source said that he/she does not believe it will go back to my first claim, but maybe to the claim that I put in prior to the 2011 claim.”

I am wondering why it would not go back to the original claim.....if the disability was at a ratable level then. …...still...... not enough info to even guess on that.

“BTW, I did not ask for this, and it comes as a total surprise.”

Did you NOD the December decision? But then again, it seems too fast for even a NOD to have been considered already.

Did you,in any way, suggest the EED was wrong? Still, to fast for VA to respond to that......

Maybe they should have applied 38 CFR 3.156 b to the December award letter EED , and didn't and that they,in fact, are going to call CUE on themselves and fix the decision.

I fully believe that this stuff happens more then we know.

In the process of a claim, 'newly discovered service records' can sometimes pop up suddenly and support a service connection award.

Something triggered them to SC your back after all those years, in 2012.

If those service records were not acquired sooner by VA and the veteran had filed a claim and been denied, that could set up the basis for an award under 38 CFR 3.156 b. Then the only recourse VA has to correct the award EED, is to call a CUE on their erroneous decision and fix it.

I have been a claimant for a great part of the last 20 years. The only claim I ever 'lost' was not really 'lost' or denied, it was rendered moot by the BVA long long ago because I had prevailed at the RO level on a different claim basis, after the BVA docketed the appeal, and the BVA decision was correct.

However I have never received a proper award letter from the VA regarding numerous issues I had before them.Never.

Some were resolved years ago by the NOD and my responses to the SOC, others were resolved by asking VA to CUE themselves (Dec 2011) and by filing a CUE claim on 3 basis (resolved in Jan 2012.)

A BVA award I received in 2009 also involved an award letter yet was completely disregard by the VARO for the high 5 figure award that this claim garnered.I had even sent as evidence, the BVA decision that said if I prevailed on that basis (many years before I even filed this claim), the VA would refund this amount withheld from my DIC for many years. I also sent them the exact regulations that supported the refund. After about a 6 months long battle, I called the VA OGC lawyer who handled my FTCA issue and the OGC resolved that issue very fast,ordering the VARO to pay me.

Past monetary errors VA had made involved over 40,000,in improperly withheld DIC, which I finally got, an erroneous denial of CHAMPVA,fixed in a heartbeat when I raised hell,

and even my January Nehmer award letter contained a clear and unmistakable error to the tune of about 30 thousand dollars, or more ,under their Section 1151 CUE award.

They immediately screwed up my REPs benefit ,in 2009, worth about 20 thousand and I got that fixed fast by being very aggressive with the VA REPS department who had employed someone who could not read the Social Security form and the VA award letter that granted me the REPS benefit.

The only thing VA didnt screw up was my Chapter 35 award. But they managed to screw up my daughters and turned that around fast (in 3 weeks) when I prepared a scathing NOD for her to sign and send to them.

I don't know if the VA thinks us widows and survivors are stupid .But I do believe they will try to victimize us with their faulty rationale and disregard for established VA case law ,whenever they can.

And that they certainly will do this to disabled veterans as well, hoping none of us claimants catch their errors or challenge them.

VA makes many errors in denials but, as I have said before, they make many errors in award letters too.

And,in my personal experience ,those award letter errors I got were always detrimental to my proper monetary award. Of course.

This is a battlefield we are on that might get worse before it gets better.

I do believe their are MANY devoted VA employees who truly do the best they can and are under the gun now to get the backlog diminished.

But haste makes waste and more errors are bound to be made in future denials as well as awards.

Sorry I am so pessimistic. Just due to over 20 years of dealing with the VA.

[Berta]

Just to add this is one of many posts at hadit on 38 CFR 3.156.

This is a powerful regulation and there are examples here of BVA cases showing how it wortks to the veteran's benefit as far as attaining the most favorable EED.

Edited May 21, 2013 by Berta

[Papa]

Berta I understand. I had lost all hope. When you have the evidence in hand, and know the VA has it also, but still get denied, it is disheartening. I believe it has to do with our service in Vietnam. My source told me that one reason for the backlog, is that they are required to look at denied claims, ones like mine. I knew the 2011 date was not correct, but I did not want to make waves, as I am 100% P&T.

Papa

[Berta]

One thing I learned Papa, is that, if the VA has made a clear and unmistakable error (which they could find on their own, or after a skirmish or battle with a claimant who is claiming they erred)

the VA WILL correct the decision.

They don't want anything like that to get to the BVA if it is an obvious error.

VA looks for whether they need to CUE themselves ,sometimes on past awards,to set up a proposed reduction.Still , I experienced the VA finding a CUE itself, and informing me of it many years ago in one of my award letters.

Actually it was the Regional Counsel who found the CUE when the RO had to get some of my info confirmed. They immediately corrected the error and sent the cash.

"My source told me that one reason for the backlog, is that they are required to look at denied claims,"

That is an interesting statement and the main reason ,in my opinion, that we have a backlog because denials set up appeals, and although a denial can be reversed after a long period of time, with evidence, that claim sits in the backlog for years when,in fact, the denial letter might have been completely wrong in the first place.

As you might recall I got a denial of my AO IHD death Nehmer claim in December 2011, as the VA said my husband had no evidence of IHD in his SMRs.

Hell..none of the incountry AO IHD vets had that in their SMRs!

I was livid at their obvious and ridiculous error and they cued themselves on it when I raised Hell,. in 3 weeks.

A denial letter that had no medical or legal factual basis at all...........I hope the VA is giving all denied claims a good look for crap like that.

Many claimants walk away from VA when they are denied....believing in the rhetoric VA used to deny,which could be absolutely ludicrous.

What if every AO Nehmer survivor like me got a denial like I got in Dec 2011...the VA would have saved mega bucks if none of us griped.

And filing a NOD,to me ,would have only put me into the backlog for no good reason for years.

The VA acknowledged their error, however, and the denial became an award in mere weeks.

But how many claimants know how to get these legal errors resolved fast?

Hopefully the ones who come to hadit do.