Clear And Unmistakeable Error

[mobie16r]

is this a clear and unmistakeable error

[Berta]

It definitely appears to me to be a CUE in the older denial.

But there is no NSC rating percentage for the PTSD on the denial rating sheet.

I am concerned about your use of 38 CFR 3.1 as the CUE.

And also the Duty to Assist regulations. DTA errors dont raise to level of CUE.

Did Dr Schuster or Dr Cobb specifically treat you for PTSD?

I feel ,although the listed your SMrs as evidence they failed to read them properly.

Did you actually get a VCAA Letter? It appears that you didn't.

Did they provide a response form with it if you did get one.

I had the same problem and it added years to my claim.

I received an improper VCAA letter and no response form. They denied saying I did not respond (to what they never sent to me)

I had a battle with my former vet reps who insisted (even up to their director's level) that my VCAA was proper.

I raised that issue right away on my I-9 asking BVA to remand due to the VCAA error.

By then however I had 3 IMOs as well. BVA agreed with me that the VCAA letter was deficient and prejidicial but I had mitigated the damages with probative evidence so it was no lionger an issue, they remanded for a 3rd VA C & P.

The opinion I got copy of was too speculative, I knocked it down and sent my rebuttal to the BVA. They agreed with me and sent me an award letter.

This claim was filed in 2003., the award letter came in 2009.And then I had to fight them for the money they owed me, which they coughed up in 2010.

Errors in VCAA letters can be critical and I mentioned this directly to Congresman Filner ( H VAC Chairman after VCAA enactment) many times by phone and mail.

Faulty VCAA letters have caused a great part of the backlog.

Did you vet rep do what my vet reps were too lazy to do....and ask for a proper VCAA letter? or at least give me support on my complaint?

I am not sure where the CUE lies here.

Did you ever have a C & P ....that is where the CUE might lie........the VCAA response could have generated a C & P exam. But it seems you didnt get a VCAA letter.....

Funny thing is,in my VCAA situation, a vet rep from a different locale was at the Vet rep office one day and I went inn and asked him to read my VCAA letter in my file.

He did and suddenly said Hey this isnt right at all !! By then I had filed a complaint on them with the OGC.And promptly notified their lawyer when I won that 2003 claim and a CUE claim they also told me didnt stand a chance. 3 ior 4 reps and the state director by then had documented to me that it was a legal VCAA letter. And it wasn't.

I think you have a valid case for CUE........but dont know how it should be shaped.

It must be a legal error. I will read over the downloads again and see if I can see something else in them to help.........

and others will chime in..........

[Berta]

wait a minute...........I almost forgot where some legal errors are committed by VA......duh!

This might help:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CDQQFjAD&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch01%2Fpt04_sp02_ch01_secH.doc&ei=czHiU8XtH4WHogSd6YD4Cg&usg=AFQjCNEc4M5QKaYIjzn_fv1K_Weg962nIg&bvm=bv.72197243,d.cGU

Or google M21-1MR VCAA and go over the M21-1MR downloads carefully.

M21-1MR can take a lot of time to read but this is VA's interpretation of the regs in 38 CFR and many M21-1MR statements have legal citations right after the reference to include any precedent setting CAVC decisions.

I used a printout or two from M21-1MR for my CUE claim of 2003 and 2004 as well as for my recent CUE claims.

I could have asked them to CUE themselves on my 2003 claim regarding the VCAA, but didnt think of doing that.

The VCAA letter for survivors ,regarding DIC ,is different then for veterans.

That was one legal error they made, and the second was the lack of enclosing the response form.

VA's legal duty regarding the VCAA is spelled out clearly in M21-1MR.

[Navy04]

You better take notes when The Great Berta gives you advice. I can never seem to keep up.

[mobie16r]

Thanks,Berta,

mobie

[mobie16r]

Berta, I found a CUE,at the bva site ,where claim was granted, almost identical to mine,we was at the same place in Viet nam,but different times. when i filed my claim in march of 2000,the RO fell to apply 38cfr 3.156 © together with cfr 20.1403(a) 38 cfr3.310 (B), duty to assist act of 2000, 38 usca 4.6

1004548.txt

[Berta]

That was cute Navy04! But everyone here is the GREATEST!

I just seem to like the legal nuances of CUE.

I posted 2 of my CUE claims here in 2004. It took 8 years for them to be awarded at the regional level.

I actually felt sometimes that VA was deliberately sitting on them so that my CUE advise here over the years would not seem credible.

Mobie16T , that decision is a beauty. I guess the VA had to do a Fenderson rating.for those additional years of retro BVA awarded.

It pays to remind all that if you file a CUE against a BVA decision, it must be in the form of a Motion .

A Motion isn't that difficult to prepare and the BVA has info on that at their web site.

I think I posted a BVA Motion template here available under a search.