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Va Cued Themselves Due To Vcaa Violation-i Think



It appears that the RO ,upon receipt of my CUE request of Aug 22,2006, has cued a past

VA decision and VA has re-opened - my claims of direct service connection of Rod's death due to AO.

This is not my two CUES on them-in adjudication-

This is a request for the VA to CUE itself.

They can do that-and did this for me in the past on 2 or 3 decisions.

I can only assume this from limited info so far-

and even had to cancel a Wednesday appt with my new vet rep because of the Blue Water Vets astounding AO news. He said they are doing all they can too to get this Haas decision out to affected vets too.

I will copy and paste the VCAA Cue request I made to the RO VSM:

This is the template to follow but make this specifc to what ever you received- I got 5 pages stapled together with no specifics and no VCAA election notice.Nothing on what I received indicates this is a VCAA notice.

The SSOC said I had been sent VCAA "letter" but I did not get a Notice-which is the Election form.

I believe this letter and the ones I sent prior to it regarding the same matter-has generated this Aug 8th 2006 re-open date on VA's part-and the news I got this AM from the RO- I have not re-opened anything-

In any event I am just thrilled at this news from the VARO!

I am not worried about a recent EED-(8-8-06)because I am a Nehmer AO class action widow.The EED is in 1994.

Use this as a template of a sort but make it specific as to what you did and did not receive as VCAA Notice.

And you can through in that this is a procedural defect and must be correct before a proper decision can be made. You can add some BVA citation numbers from 2006 to support that-there are plenty remands there due to this violation of the VCAA.

Ms. (VARO VMS ) August 22, 2006

Department of Veterans Affairs

Regional Office Re: XX XX XXX XXX

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202-2478

Dear Ms. XXXX,

I am asking you-the VARO- to CUE ( to make a VARO finding of clear and unmistakable error) in regards to your past decisions regarding my claim of Feb 2003 for direct service connection of my husband’s death (Rod Simmons, DOD Oct, 14, 1994) due to Diabetes Mellitus contributing to causes of death as listed in his death certificate and autopsy, incurred by virtue of his exposure to Agent Orange during the Vietnam War.

VCAA letters regarding my claims, as you wrote to me in January,2006 would be sent to me. None ever came. The July 23, 2006 letter I received from you (re: 307/CAO/21) is not a formal or legal VCAA Notification at all. I never received any election form nor any request as to what I would need to send to you- specific to this claim. There is no signed election form in my c file because you failed to send me one.

I have enclosed the National Veterans Legal Service Programs statement regarding proper notification under the VCAA. And of course you can see what I mean in Pelegrini V. Principi, 38 C.F.R. 3.159, and as found within provisions published within M21-1.


VBM, 2005 Edition (NVLSP) page 1307 highlighted Respectfully,

CC: (put your POA here and send them a copy of this) Berta M. Simmons

Edited by Berta
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Berta, can you ask them to cue themselves, in your NOD, on other issues. Ie... their failure to correctly apply CFR 38 Part 4. I know the NOD is the begining of the appeals process however, it a cue exists then it exists. ie VA CP exam provides that vets forward flexion of back is 45 degrees. Part 4 provides that if forward flexion of back is greater than 30 degrees but less than 65 degrees then a 20 percent rating is to be assigned. In their rating decision claim was denied in whole. Nod resulted in "a new interpertation of the evidence" provides that a 10 percent rating is to be awarded. Don't know what rules of theory they used to interpet the evidence, but it is pretty clear in that the doctor used an authorized VA method to determine forward flexion, and 38 CFR provides that a 20 percent rating is to be assigned. All of this is on my VA 9 but I would sure like to send a zinger to the VARO and ask that they CUE themselves so they will not look like idiots.


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If a veteran is within the one year NOD appeal period they can

1. file NOD

2. ask for reconsideration of the decision (I suggest to get a vet rep to help on that)

3. they can ask the VARO to CUE it's decision based on violation of VA case law and regs in the decision.

(I suggest to get vet rep to help on that too)no medical difference of opinion-

If the VA violated established VA regs, M21-1 VCAA, or VA case law-you can ask them to CUE themselves within your one year NOD date.

We dont discuss these issues in # 2 and 3 here much- because the most important appealate right on a denial a vet has is the NOD and it must be filed within that year.

If you do # 2 or # 3 watch the NOD dates carefully so that-if VA fails to respond to your Recon or CUE request-you still can file the NOD on time.

Dont do # 2 or # 3 without a vet reps help and support.

If they say Huh? get a new vet rep.

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If the NOD has been submitted can you still submit request for VARO to call CUE due to improper application of regulations or do you now have to just sit and wait on results of NOD?

Vet reps in my part of the country are out of the question for me. I have spoken to 5 of them who told me I should be glad that I was able to get 50 percent and since I was able to do that I did not need their help!


Edited by Ricky
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Berta, maybe I missed something, with the VCAA letter is there supposed to be a form also? My letters were vague; wishywashy but way down the last page said I need to let them know what I want them to do next. No blocks to check or underlined items even to draw out specific things. The letter is not even labeled VCAA. I may have missed something in translation several times over now. Hm, hat off and head scratchin' here.cg

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Berta, maybe I missed something, with the VCAA letter is there supposed to be a form also? My letters were vague; wishywashy but way down the last page said I need to let them know what I want them to do next. No blocks to check or underlined items even to draw out specific things. The letter is not even labeled VCAA. I may have missed something in translation several times over now. Hm, hat off and head scratchin' here.cg

I have been having trouble replying ????

Go to Jangrin's VCAA post with the attachment-if you didnt get the same thing- specific to your claim and no election form-they violated your VCAA rights.

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