Denial Of Disability Claims

[Michael Enriquez]

i have put in a claim for a few different claims and these were denied due to nothing being in my medical records now I just received a letter from the VA stating that they are unable to locate my medical records for my period of service. My question is do I still have to prove my claim or what should my next steps be. The letter stated I had 30 days to respond back or the VA would be making a decision.

[COOL BREEZE]

In my case, I used 2 fax machines that hummed for several days while I faxed important information 10 times per medical document relevant to my claim to ensure that they couldn't say there was no evidence. Of course the VA had to pay to send all these extra copies back to me as "Veteran has repeatedly submitted documents already received. Da. If you clean your glasses once in a while, I wouldn't have to do this!!!

[Michael Enriquez]

I had contacted NPRC before because I wanted to see what was in my medical records as well, the response back from NPRC was that the VA had my medical records I sent in the copies of all the responses I have received.I took GEEBEE711's advice and reread the letter I received from the VA and I did read it right.I have now been scheduled for C&P exams for hearing and I don't know what else but,the person that contacted me to schedule the appointment said it would take about 6 hours.

[Michael Enriquez]

Berta in yur reply back to me you mentioned something about the Va should CUE themselves. Could you explain what that means please.

[GEEBEE711]

Berta in yur reply back to me you mentioned something about the Va should CUE themselves. Could you explain what that means please.

Michael, CUE stands for "Clear and Unmistakable Error".

Berta had stated "Personally I would ask them to CUE themselves,in violation of 38 CFR 4.6, as they had your inservice records, per NPRC ,and failed to consider them". I'm not sure the quote belows explains just how the VA can CUE themselves, so I'm sure that Berta can give you further help. Again, the quote below will explain what a "CUE" is and does.Sorry, it's a long read!

Quote:

"Clear and Unmistakable Error; CUE

The general rule for VA benefits is that a “final decision” denying a claim cannot be changed at some later time. A veteran can file a new claim for the same condition based on new evidence, but the effective date of any award will be the date that the new (“re-opened”) claim was filed, not the date of the earlier denied claim. That is why it is so important to keep a claim alive as long as possible by appealing denials whenever allowed.

An exception to the final decision rule is when a “Clear and Unmistakable Error” (also known as a “CUE”) occurred in an earlier decision. If a claimant can establish CUE, VA is required to award the benefit as if the denial had not occurred. VA rules allow a claimant to file a CUE claim at any time after a denial, so successful CUE claims can result in a large award of years or even decades of retroactive benefit payments.

Because CUE can result in very large payments many veterans attempt to claim CUE. However, VA has established very specific regulations for claiming and supporting a CUE claim. The result is that many veterans file CUE claims that have little chance of success either because they do not understand what a CUE is or how to file a proper CUE claim.

Veterans considering a CUE claim must understand the following important items:

* The rules for filing a CUE claim are not the same as a benefits claim

* A claimant can only file one CUE claim for any decision (only get one shot)

* The VA “duty to assist” does not apply to a CUE claim (adversarial action)

* A CUE claim must identify the specific error in the earlier decision

* The error, if corrected, must compel a different outcome

* Corrected decision made based on the record and the law as it was at the time of the original decision

These factors make CUE claims very challenging and rarely granted.

First of all, anyone considering filing a CUE claim needs to either use a representative with experience with CUE claims or do a lot of homework. Unlike other VA benefits claims, a CUE claim can only be filed once. If the claim is not filed correctly or does not meet the exact VA requirements, the opportunity for a CUE award will be lost forever. This is no time to “wing it,” especially if there is significant money at stake.

The next consideration is whether there is really a CUE claim. A common problem with CUE claims is that the claimed error is not a CUE. A CUE claim is limited to two types of errors. First, a CUE may exist if the correct facts, as they were known at the time of the decision were not before the Board or the regional office. This could occur, for example, when a medical examination report or other evidence was not properly put in the claims file. If such evidence is later found, it may provide the basis for a CUE.

The second legitimate basis for a CUE is if the law at the time of the decision was incorrectly applied. A simple example of this type of CUE is receiving an award for a single gunshot wound, when the veteran has suffered two gunshot wounds. In such a case, the CUE would be improperly applying the regulations and underpaying the veteran.

Veterans must understand that CUE is not a disagreement with the decision denying the original claim. It is not enough to claim that VA did not weigh the evidence properly, ignored something in the claim file, failed to properly “assist” the veteran, or just got it wrong. In general, any issue that could have been raised on appeal after the denial, but was not, is not a CUE. Many, if not the majority of, CUE claims submitted to VA do not identify an error that is really a CUE.

If it appears that there may have been CUE, it is very important that a claim be carefully prepared. VA regulations require that CUE claims contain detailed information, not just the general type of language allowed in a regular benefit claim. The failure to specifically identify the error is another reason that many CUE claims are denied (and cannot be resubmitted).

A CUE claim must be in writing, state the claimant’s name, claims file number, and date of the decision which contained the CUE. In addition, a CUE claim requires specific allegations that “set forth clearly and specifically” the alleged CUE. This means that the claimant has to identify the specific law that was applied incorrectly or the specific fact or facts that were not properly considered. Equally important, the claimant must also explain why the result would have been different if the proper law and facts were considered. Claims containing only “non-specific allegations” will be dismissed.

This is another area where many CUE claims fall short and are rejected. The claim must describe how and why the previous decision would have changed if the CUE had not occurred or was corrected. A procedural mistake that would likely result in a remand or further development in a regular claim will not be a successful CUE claim. The error must change the outcome from a denial to an award, not just result in some doubt about the denial. Without this, the CUE claim will be denied.

To further complicate matters, a CUE claim must be considered under the facts and the law at the time of the earlier decision. This means that only the medical examinations and other evidence that existed as of the date of the decision can be used in resolving the CUE claim. The same for the rules, regulations, and other laws applicable to the claim – only the law at the time of the decision is used to resolve the CUE. As a practical matter determining which facts existed at the time is usually not too difficult. However, figuring out what law existed many years or decades in the past can be very difficult, even for an experienced attorney.

Finally, even if a proper CUE claim is submitted, it is very difficult to obtain an award. The legal standard for an award is much more difficult than for a regular claim. An error must be “clear and unmistakable” to win the claim. The Veterans Court has described a CUE as “a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of latter reviewers compels the conclusion, in which reasonable minds could not differ, that the result would have been manifestly different but for the error.” This is a very tough standard. There are not many cases where “reasonable minds” would all reach the same conclusion. In other words, it is not easy to get a CUE award.

CUE is a powerful tool that if properly used can correct really bad VA decisions. However, the CUE process is much different and more difficult than the regular claims process. Veterans who do not educate themselves or obtain properly experienced representation can easily get their CUE claim rejected because of some special rule or regulation. This could be a very expensive mistake because you only get one shot at a CUE claim.". End Quote.

I hope this helped somewhat! We ALL know just how confusing the VA system is, and this in NO exception!

As always...The very best of luck to you. As a side note...I've read MANY of Berta's posts. This is one person that has a weath of information to give!

"

[Berta]

Make sure you raise this point with them, along with providing them copies of the NPRC responses.

“How in the xxxx could they come up with your 60% rating without having your medical records?!?! “

The CUE question....

If the VA makes a legal error in a decision during the appellate period, they have hindered our ability to properly develop a NOD.

There is no regulation for the tactic of asking them to Cue themselves on a decision that is still within the NOD time frame. I made it up.

A NVLSP lawyer saw it in action dueing my Nehmer review, and suggested ,since it worked for me, to use it again if needed, ...and I used it again on the Nehmer award letter.(But had to file my NOD on time as well because VA didn't react fast to it)

This is discussed in a few topics like above in the CUE forum.

My pending CUE Request in that topic is with a VA specialist...whatever that is....

It resulted from my immediate request that they CUE themselves on the initial denial of that claim.Dec 2011.

That worked in weeks but the award was wrong so I asked them again to CUE themselves.

Also I mentioned here my 2005 Cue Yourself Request, sent via IRIS complaint , that resulted in my VARO giving me an immediate double DRO review.

They had violated 38 USC 4.6.

My vet rep screwed the DRO review all up.I should have gone up to Buffalo RO myself.

That claim was awarded by the BVA, taking note of all the critical evidence the RO had ignored,particularly the evidence that caused the DRO double review, and that had been sent to them multiple times.

The Evidentary regs within 38 USC 4.1 et al might help you make this type of request.

Also lost or missing service records mean the VA has an enhanced Duty to Assist you.

Remind them of that:

The Veteran's service treatment records have been lost or 
destroyed and thus are not available for review.  The United 
States Court of Appeals for Veterans Claims (Court, CAVC) has 
held that in cases where records once in the hands of the 
government are lost, the Board has a heightened obligation to 
explain its findings and conclusions and to consider 
carefully the benefit-of-the-doubt rule.  O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991).  This increases the 
VA's obligation to evaluate and discuss in its decision all 
of the evidence that may be favorable to the Veteran.  Russo 
v. Brown, 9 Vet. App. 46, 51 (1996).

You can raise the above Court Citations to VA to support that point.

In your case the VA has a “Heightened obligation' to explain the denial and fully extend the Benefit of Doubt to you.... particularly since they were last in the evidence chain, for having those records in their possession....

In any event you got good advise here and are willing to be proactive to get this fixed.

Like John said VA uses "the SMRs are silent" like a mantra to sometimes cover their laziness.

Meaning , in that case they want a vet to think they not only had the SMRs but they actually read them.

It is often plain and simple BS.

I used to work on vet claims in my home for local vets. A few have left their paperwork with me,so they now where it is if they need it again.

Many got the SMR's are silent BS, but I found that their SMRs were loud and clear as to an inservice nexus.

The Shreddergate fiasco is over (I hope) and now we deal with Stallergate.

Your Mil records arent WMDs, they are somewhere, and are probably still at the VARO you deal with.

MANY of us here have been through this type of BS with VA regarding many types of missing critical stuff ,

and I sure have learned over the last 20 years, that a squeaky wheel can sure help get thumbs out of butts.

I again suggest, if you use IRIS to contact them, file the IRIS as a Complaint ,with the complaint pop down menu.

Edited February 6, 2014 by Berta

[stillhere]

The "SMR's are silent on this issue" is the VA's gambit they used on me when I claimed TMJ. The Army dentist did not record a DX when he treated me. The jerk did this on purpose I am sure so I could not claim it later. I was getting ready to go to Nam so nothing was going to stop my going even if I had lockjaw. All the dentist wrote in the record was "exam". Is this malpractice or what?

John

John, This so damn true! When the Army wants you come hell or high water they will get you! Then when they are done with you good bye!

I flunked my hearing test at the induction office but when they drafted me I passed! They even had a 55db recorded on my entrance exam and still took me! They want you they will get you!!

Stillhere