Ok Pls Help On This. This Is What I Have For Cue

[chrome_305]

I had a over all rating of 0%. When I was awared Pension in 2011. Just was successful an appeal to 70% PTSD dated May 2013 back pay to june 2011. My NOD is counting down and what i have below I want to submit as CUE but need help. Now, Should I not be considered P&T since I have both comp & pension plus I have updated PTSD DBQ and records all in VA hands.

I dont plan to use all but need anyine everyone help. TIA

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I respectfully request the VA to call a clear and unmistakable error "CUE" under evidentiary requirements of 38 CFR 4.6., 38 C.F.R. 3.160,38 USC § 5109A, 38 C.F.R. 3.155, 38 C.F.R. 3.156,38 C.F.R. § 4.16(a) , 38 CFR § 3.3(a) (2) (iv)) and to correct it.

1. Lack of TDIU consideration occurred in decision rating dated May 24, 2013 VARO St. Petersburg Regional Office. Rating Decision dated May 24, 2013 "We determined that you are entitled entitlement to both VA pension and service connected disability. Overall rating or combined rating of 70%. We do not add the individual percentages of each condition to determine your combined rating. We use a combined rating table that considers the effect from the most serious to the least serious condition" " We enclosed VA form 21-8764, " Disability Compensation Award Attachment-Important Information" which explain certain factors concerning your claim.,

Decision letter fails to acknowledge, refer or address TDIU."

Summary: Veteran is entitled to a 100% disability rating if he can established that his service-

connected disability [ies] preclude him from obtaining gainful employment. “TDIU”, referring to a Total Disability rating based upon Individual Unemployability. See 38 CFR § 3.3(a) (2) (iv))

2. Decision letter May 24, 2013, C&P exam dated March 28, 2013 (PTSD Initial DBQ), VA Pension award granted Nov 1, 2011, and VA Pension Eligibility Verification Report 2011-2013 contain sufficient and current detail to warrant an adjudication for which is "reasonably raised" by the records documents or medical records held by VAMCs to include VARO St. Petersburg Regional Office, while not explicitly in the C-file, were still in the VA’s “constructive possession”.

Summary: An informal request for TDIU or IU should apply to rating decisions May 24, 2013 awarded July 1, 2011. Potential entitlement to TDIU is part of every claim for disability compensation. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) 38 C.F.R. § 4.16(a)

3. See 38 C.F.R. 4.16 (Ratings for compensation based on unemployability)

“Total disability ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities..."

Summary: The current over-all rating for service connection compensation of the veteran is 70% dated May 24, 2013. Equally, when a claimant or the evidence of record reasonably raises an informal claim for TDIU, the Secretary must furnish the claimant the form (VAF 21-8940) as prescribed by the Secretary. See 38 C.F.R. 3.160

4. See Rating decision dated May 24, 2013: Enclosures: Evidence and Evaluation Criteria page seven.

Summary: Rating Decision dated May 24, 2013 granting 70% does not contain form VAF 21- 8940.

5. See: 38 C.F.R 3.155(a) See also: Enclosures: Evidence and Evaluation Criteria contained in rating decision dated May 24, 2013 page seven.

Summary: “Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution."

6. See: 38 C.F.R. 3.156

Summary: The veteran is entitled to an effective date for the award of TDIU as of the date of his original claim, that being July 1, 20011. See also: Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96 (1996) See: AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 421 (1999).

Summary: A veteran is not required to file a TDIU application form before the VA is obligated to consider and adjudicate a TDIU claim. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable.

Summary: If it is apparent that the service connected disabilities keep the veteran out of the work

force, then VA must assign the rating of 100% disabled due to Individual Unemployability.

I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.

Please prepare and award the proper rating and retro payment as an accrued benefit to me, under this clear and unmistakable error in the enclosed findings.

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Edited May 30, 2013 by chrome_305

[Berta]

I LOVE it !!!!!

Re: this part:

“Please prepare and award the proper rating and retro payment as an accrued benefit to me, under this clear and unmistakable error in the enclosed findings.”

I would take out the “as an accrued benefit to me “ part as that only refers to survivors claims.

This section of M21-1MR ,

www.warms.vba.va.gov/regs/38CFR/BOOKC/PART4/S4_16.DOC, states that

“Reasonably raised claims for IU may arise in a Veteran’s original claim or in a claim for an increased rating. The Department of Veterans Affairs (VA) must consider a claim for IU if

• the Veteran’s SC rating meets the minimum schedular criteria found in 38 CFR 4.16(a), and

• there is evidence of current SC unemployability in the Veteran’s claims folder or under VA control.

Reference: For more information on reasonably raised claims for IU, see

Norris v. West, 12 Vet.App. 413 (1999).”

( This is under the link above for M21-1MRE,Part 4, Subpart ii,Chapter 2, Section f, under “h”.)

The key word is “Must” if both above requirements have been met.

'evidence of current SC unemployability' could be a SSDI award VA is aware ofm based solely on SC disabilities and/or a Voc Rehab statement that found the veteran's Scs precluded them from employment.

In my opinion, it those 2 criteria are met, and VA does NOT consider a vet for TDIU, then that is a CUE on their part.

However, I just noticed something else in what you stated:

VA said

"We determined that you are entitled entitlement to both VA pension and service connected disability. Overall rating or combined rating of 70%.” So I am assuming the pension would have been based solely on the SC conditions.

NSC pension-

Eligibility

Generally, a Veteran must have at least 90 days of active duty service, with at least one day during a wartime period to qualify for a VA Pension. If you entered active duty after September 7, 1980, generally you must have served at least 24 months or the full period for which you were called or ordered to active duty (with some exceptions), with at least one day during a wartime period.

In addition to meeting minimum service requirements, the Veteran must be:

• Age 65 or older, OR

• Totally and permanently disabled, OR

• A patient in a nursing home receiving skilled nursing care, OR

• Receiving Social Security Disability Insurance, OR

• Receiving Supplemental Security Income

from: http://benefits.va.gov/PENSIONANDFIDUCIARY/pension/vetpen.asp

So, if you fall under the second category (deemed totally and permanently disabled) for the pension award, in my opinion this too should have triggered the VA to consider you for TDIU.

Because I am assuming that the disabilities they used for both the Pension and the SC award are the exact same ones.

I used this very point in my recent request for the VA. To CUE itself.

When VA awarded a 100% retro for only 6 months, under 1151 in my award last year, for my husband's prior NSC, yet changed to Section 1151 Stroke, he fell into the second category above by all medical evidence of record for the first 6 months after the stroke and then started to receive SSDI for the stroke (which was changed to PTSD after we filed reconsideration).They still have refused to acklnowledge his TDIU form but 100%,when they fix this CUE, will due.

I feel we both have very similar issues.

Last week I thought maybe I was going nuts. (That happens to me when I review my claims and start to doubt my own thinking ability.....part of my VA induced PTSD)

Much of my evidence for the similar CUE request I filed , was dated prior to my husband's initial SSA award.

One piece of my evidence is a letter dated 1994 from the then UnderSecretary of Benefits RJ Vogel,VBA Washington DC, who stated that they were having problems getting my husband's SSA records and he was (at that time) 30% for PTSD and , as Vogel stated, had suffered a 'permanent and total” NSC stroke.

I checked the above NSC link from VA days ago to make sure that a P & T designation by VA, ,whether pension or SC, is the same thing.Apparently it is.

My award from last year changed the stroke to 100% 1151 yet VA claimed only 6 months was P & T as well as 100%. They were completely wrong.

So the pension award you have might also be beneficial to raise under your CUE request as well as the other stuff you mentioned,if it was based on the “Permanent and total criteria” of the pension regs.

I will re read this topic later and add anything else I can think of......I think you prepared an excellent CUE request and keep in mind, a timely NOD might well still have to be prepared,unless they resolve this favorably first.

One other thing....when I cite a regulation they broke or anything from M1-1MR that they did wrong, I refer to and enclose a printout of the exact reg and/or M21 statement.

38 USC holds the laws that govern the VA, CFR is the way they are supposed to be applied,and M21-1MR is the VA's manual that takes them step by step as to how to do that. A violation of M21-1MR,in my opinion, and I have made that point to VA, in my last CUE claims, is a CUE.

M21-1MR also contains the exact case law references so that too can help use M1-1MR to support this type of request.

[Berta]

Just to add:

This interesting post at Military.com by a former hadit member ( A DAV NSO) which makes the same point I did and there might be something in this post to help you or someone else.

In part:

“If the VA has failed in compliance of any of the aforementioned on a failure to infer a claim for TDIU, then the veteran may have a basis to file a Clear and Unmistakable Error (CUE), these are very specific allegations of error, that are essentially a facial, and collateral attack on VA, and are given no deference via the VA's "duty to assist", nor is there ANY application of reasonable doubt doctrine (38 C.F.R. 3.102).

Clear an Unmistakable Errors are errors which are undebatable, in this context if the law at the time of the decision was incorrectly applied, and that the decision would have been “manifestly different but for the alleged error".

If you feel the VA may have failed to consider your claim for service connection/increased evaluation as an additional claim Individual Unemployability then you may want to confer with a National Service Officer or attorney-in-fact with a recognized and Congressionally Chartered Service Organization, who is accredited to represent VA claims.

These are errors we find sometimes weeks sometimes years after a claimant was awarded benefits which made him or her entitled to a TDIU award. This posting is made as a point of discussion and for members of military.com to discuss and explore.”

http://forums.military.com/eve/forums/a/tpc/f/4140032522001/m/8140002562001

Also the Roberson decision from the Federal Circuit court makes that point as well:

“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim "to its optimum" as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU. Thus, we reverse the court's holding that Roberson failed to make a claim for TDIU before the RO at the time of its 1984 decision. “

from:251 F.3d 1378 (Fed. Cir. 2001)

HOWARD F. ROBERSON, Claimant-Appellant,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

00-7009

United States Court of Appeals for the Federal Circuit

DECIDED: May 29, 2001

https://bulk.resource.org/courts.gov/c/F3/251/251.F3d.1378.00-7009.html

The Fed Cir Court of appeals reversed the CAVC's decision.

In VA OGC Precedent Opinion 6-96, there may well be something else you can use in the CUE as well.......although the issue is regarding the Floyd case, and extraschedular consideration, I think if you read this carefully, there may well e something that states the VA is required to consider TDIU in all cases whereby TDIU might be warranted.

http://www.docstoc.com/docs/103636771/VAOPGCPREC-6-96

This isnt the best link....the office of general Counsel VA has a better link and I am very sure their link is here too.

Due to problems with the multi million new Gen 4 satellite the last few days ,I cannot access the OGC link at all.

I never hesitate to try to find any VA OGC Precedent Opinion that supports anything I ever claim.

I used a beauty for the SMC CUE claim I won last year,in addition to my other legal evidence.

[chrome_305]

I LOVE it !!!!!

Re: this part:

“Please prepare and award the proper rating and retro payment as an accrued benefit to me, under this clear and unmistakable error in the enclosed findings.”

I would take out the “as an accrued benefit to me “ part as that only refers to survivors claims.

This section of M21-1MR ,

www.warms.vba.va.gov/regs/38CFR/BOOKC/PART4/S4_16.DOC, states that

“Reasonably raised claims for IU may arise in a Veteran’s original claim or in a claim for an increased rating. The Department of Veterans Affairs (VA) must consider a claim for IU if

• the Veteran’s SC rating meets the minimum schedular criteria found in 38 CFR 4.16(a), and

• there is evidence of current SC unemployability in the Veteran’s claims folder or under VA control.

Reference: For more information on reasonably raised claims for IU, see

Norris v. West, 12 Vet.App. 413 (1999).”

( This is under the link above for M21-1MRE,Part 4, Subpart ii,Chapter 2, Section f, under “h”.)

The key word is “Must” if both above requirements have been met.

'evidence of current SC unemployability' could be a SSDI award VA is aware ofm based solely on SC disabilities and/or a Voc Rehab statement that found the veteran's Scs precluded them from employment.

In my opinion, it those 2 criteria are met, and VA does NOT consider a vet for TDIU, then that is a CUE on their part.

However, I just noticed something else in what you stated:

VA said

"We determined that you are entitled entitlement to both VA pension and service connected disability. Overall rating or combined rating of 70%.” So I am assuming the pension would have been based solely on the SC conditions.

NSC pension-

Eligibility

Generally, a Veteran must have at least 90 days of active duty service, with at least one day during a wartime period to qualify for a VA Pension. If you entered active duty after September 7, 1980, generally you must have served at least 24 months or the full period for which you were called or ordered to active duty (with some exceptions), with at least one day during a wartime period.

In addition to meeting minimum service requirements, the Veteran must be:

• Age 65 or older, OR

• Totally and permanently disabled, OR

• A patient in a nursing home receiving skilled nursing care, OR

• Receiving Social Security Disability Insurance, OR

• Receiving Supplemental Security Income

from: http://benefits.va.gov/PENSIONANDFIDUCIARY/pension/vetpen.asp

So, if you fall under the second category (deemed totally and permanently disabled) for the pension award, in my opinion this too should have triggered the VA to consider you for TDIU.

Because I am assuming that the disabilities they used for both the Pension and the SC award are the exact same ones.

I used this very point in my recent request for the VA. To CUE itself.

When VA awarded a 100% retro for only 6 months, under 1151 in my award last year, for my husband's prior NSC, yet changed to Section 1151 Stroke, he fell into the second category above by all medical evidence of record for the first 6 months after the stroke and then started to receive SSDI for the stroke (which was changed to PTSD after we filed reconsideration).They still have refused to acklnowledge his TDIU form but 100%,when they fix this CUE, will due.

I feel we both have very similar issues.

Last week I thought maybe I was going nuts. (That happens to me when I review my claims and start to doubt my own thinking ability.....part of my VA induced PTSD)

Much of my evidence for the similar CUE request I filed , was dated prior to my husband's initial SSA award.

One piece of my evidence is a letter dated 1994 from the then UnderSecretary of Benefits RJ Vogel,VBA Washington DC, who stated that they were having problems getting my husband's SSA records and he was (at that time) 30% for PTSD and , as Vogel stated, had suffered a 'permanent and total” NSC stroke.

I checked the above NSC link from VA days ago to make sure that a P & T designation by VA, ,whether pension or SC, is the same thing.Apparently it is.

My award from last year changed the stroke to 100% 1151 yet VA claimed only 6 months was P & T as well as 100%. They were completely wrong.

So the pension award you have might also be beneficial to raise under your CUE request as well as the other stuff you mentioned,if it was based on the “Permanent and total criteria” of the pension regs.

I will re read this topic later and add anything else I can think of......I think you prepared an excellent CUE request and keep in mind, a timely NOD might well still have to be prepared,unless they resolve this favorably first.

One other thing....when I cite a regulation they broke or anything from M1-1MR that they did wrong, I refer to and enclose a printout of the exact reg and/or M21 statement.

38 USC holds the laws that govern the VA, CFR is the way they are supposed to be applied,and M21-1MR is the VA's manual that takes them step by step as to how to do that. A violation of M21-1MR,in my opinion, and I have made that point to VA, in my last CUE claims, is a CUE.

M21-1MR also contains the exact case law references so that too can help use M1-1MR to support this type of request.

Thanks for great information Berta, I will definite be using it.

As far as the NOD I think the time on it doesn' t start since I wasn't mailed a TDIU form. I believe I read it some where but can't find it again .

Edited May 31, 2013 by chrome_305

[broncovet]

Berta chimed in and gave excellent advice. The only thing I would add is this:

Dont burn down bridges. That is, go ahead and ask the VA to Cue themselves, like already mentioned.

However, ALSO make sure you file a NOD to this before the one year appeal period is up.

Reason: Tho Berta has had success with this, many other Veterans were unable to meet the "Cue" (undebatable) standard of review, and wished they had filed a timely NOD. Dont be one of them.

It seems that your "CUE" claim, and an appeal are independent, and you could well file both at once. You can wait until the outcome of the CUE, if they complete it in under one year. (unlikely). I am suggesting NOT letting the filing of a CUE mean you "give up" your normal appeal rights.

Edited May 31, 2013 by broncovet

[Berta]

Broncovet is correct....you need to file the NOD within one year of the date of the decision.

A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a). If a NOD is not filed within the one year time period, the RO decision becomes final. 38 U.S.C.A. § 7105© (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2011). An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C.A. § 7105©.

The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). An NOD postmarked prior to expiration of the one year period will be accepted as having been timely filed. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.305(a). In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305(a).

Somewhere here I mentioned that a NOD deadline can be extended for good cause.......

It is in M 21-1MR ,with the regs.

.I have never seen it done and found no successful time limit extension at the BVA regarding a NOD, but when I filed my NOD I also requested that the actual NOD deadline be extended because the award contained a CUE and therefore my rights were deprived of the benefit of filing a proper and timely NOD on a decision that contained a legal error.

I don't care if they extend my deadline or not....but I threw that in ,in case my claim goes to the BVA.

M21-1MR, Part I, Chapter 5, Section B under 4.

“(b) Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. (Authority: 38 U.S.C. 501(a))”

I sure would not depend on VA however, to determine what is or isn't good cause, so the NOD must be filed in timely fashion.

In my NOD I mentioned again my prior request that they CUE themselves, which superseded receipt of my NOD and which should be addressed first by the VA.

I have learned to prepare everything I send to my VARO,with the BVA ultimately in mind