Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

The Power Of 38 Cfr 4.6

Rate this question


Berta

Question


I mention here ,from time to time, the power of 38 CFR 4.6. I am putting this in the main forum because I think VA makes more CUEs regarding this regulation, then we know.

One of the first things vet reps should look for in a denial, is whether the VCAA letter was correct

(if that letter is detrimental to the claimant, it will surely become a lengthy BVA case, remand due to VCAA violation, ,and, back to BVA scenario )

VCAA letters are different fopr survivors then for veterans...I made that point here in past posts.

and then whether the decision contains a CUE......do most vet reps really check those important points?



“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6


A violation of this regulation can be a basis , within or out of the apellate period., for a valid CUE claim. I claimed CUE immediately under this regulation regarding my initial AO IHD decision and that CUE was fixed right away. The decision however contained another CUE which I have claim pending on.

I was going over my pending CUE based on this regulation, (38 CFR 4.6 ) I almost forgot I had cited a BVA decision that ,because it is a legal decision and not medical, and explains what I mean.Also theBVA decision cited VA case law that I didnt have to reiterate.

In part:
"The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra.

This error is significantly more than a disagreement as to
how the facts were weighed or evaluated. Crippen, supra.
Rather, it was a denial of the existence of facts of record.
Moreover, a persuasive reason has been given as to why the
error manifestly changed the outcome. This reason is that
had the error not been made, a compensable rating for
irritable bowel syndrome would have made effective the day
following separation from active military service, rather
than the day that a VA outpatient treatment report noted
irritable bowel syndrome. This review for CUE is based
solely on the evidence of record at the time of the February
2000 rating decision. Russell, supra.



In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted."

CONCLUSIONS OF LAW

1. The criteria for a 30 percent schedular rating for
irritable bowel syndrome with gastroesophageal reflux are
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10,
4.114, Diagnostic Code 7319 (2008)."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files5/0844495.txt


Evidence in the record at time of the alleged CUE decision,
violation of basic VA case law,regarding evidence, in place at time of the past decision
proof of a ratable condition at time of the alleged CUE decision,
and a proven manifested and altered outcome...meaning more retro is due the vet (in this case back to the day after his discharge.....1989.

I am glad I found that I had used this decision in my pending claim because maybe it will help others to understand how I have been successful with both types of CUE claims.

But besides using this decision,in my claim, my evidence is relevant and probative and fits into the entire gamit of CUE regs, as above.

It is evidence that was in VA's possession at time of alleged CUE decision, and ignored completely by the VA.

The manifested outcome, I stated to VA, is 100% P & T ,1151for 16 additional months, due the veteran, plus one spouse, one child.Plus SMC S for those 16 months.

This is also an example of why every surviving spouse should substitute themselves ASAP for any claims the veteran had pending at death.

And aggressively fight over any decisions that contain CUE to their detriment.


Edited by Berta
Link to comment
Share on other sites

Recommended Posts

  • 0

As I requested, when you posted in my profile- please post your questions here in the main forum.

Or maybe someone here, who can deal with claims questions by email, will get in touch with you.

When you post your question here please give us a hyperlink to, or the Citation # and Docket # of the remand.

BVA has them posted for the first 1/4 of 2018 and it might be at the BVA site by now.

 

 

 

 

Link to comment
Share on other sites

  • 0

Hi Berta,

I just re-read your post about the VCAA and CUE. I never ever even considered that letter. SO I have a question. My claim was in 2008 for sleep apnea. It was denied. I did not submit lay letters or NEXUS, etc. My SMRs only referenced chronic headaches, morning confusion (short period of time), dizziness a couple times, leg cramps a occasionally, chest pains, and fatigue once. My VCAA stated that the VA needed evidence to support my claim of sleep apnea due to asbestos exposure. My claim was never for that. It was just for sleep apnea.  There is no mention of exposure to asbestos in any of my medical records. I never had any exposure as far as I know so there was no one who could provide those lay letters including myself. So I did not submit anything.  I was diagnosed and rated (in 2001) 10% for GERD and 0% for Allergic Rhinitis. I was diagnosed for chronic sinusitis in service but VA denied that in 2001. I have attached the VCAA letter for the sleep apnea. Do I have a case based on the erroneous reference and request for asbestos documentation?

 

VA VCAA Ltr Sleep Apnea Claim 2008. PDF.PDF

Edited by Galen Rogers
removed number
Link to comment
Share on other sites

  • 0

What i stated was

"A violation of this regulation can be a basis , within or out of the appellate period., for a valid CUE claim. I claimed CUE immediately under this regulation regarding my initial AO IHD decision and that CUE was fixed right away. The decision however contained another CUE which I have claim pending on."

We cant file CUE on a VCAA letter-that type of error should  be corrected ASAP.

But my point was this- I received a VCAA letter for one of my claims, and sent them exactly what they needed.

I was looking at it yesterday (this is a different situation than the IHD claim I mentioned above)

My evidence for that claim was one document from VA-( a few pages) and I listed and sent it in with the VCAA waiver.And I got a USPS tracking slip- I sent it in as Priority mail.

Denied on March 4, 2015, I filed CUE stating they received the evidence and it was also listed on  the 5103 waiver.

I stated this as a violation of 38 CFR 4.6 , and used the 5103 waiver and the VA document as evidence of CUE.

Awarded April 2, 2015.

You stated: "So I did not submit anything"but if you had set them evidence of the sleep apnea you could have had the asbestos error corrected right away.

I am preparing a CUE because of another 2015 decision they made-

they sent me one VCAA letter for two separate claims, awarded one , and verified by phone they had 13 pieces of evidence for the other claim but denied it saying I had not submitted evidence.

I still have the copy of the VCAA waiver, listing the evidence they said they had.

I thought the issue would have become a new AO presumptive by now-it hasn't- so I need to get the older decision rectified with CUE.

My point is if a VCAA letter is incorrect, it can become the basis for CUE because it will generate a decision that can often be cued. A VCAA letter is not a decision, therefore no CUE can be filed on that, but it can be used to support a CUE.

I also had this problem years ago and asked the BVA to remand my claim for a better VCAA letter.My dumb vet reps and the former director of that POA tried to convince me it was  a valid VCAA letter.

BVA agreed with me but found the erroneous VCAA letter was a moot issue because they awarded due to my 

probative evidence. 

You could reopen that claim if you have New and Material evidence and make it clear that their past VCAA letter was incorrect. 

 

 

 

Link to comment
Share on other sites

  • 0

GR, are you sure your POA-VSO AMVETS, didn't list your 2007 SA DX as Secondary to Asbestos exposure on the very 1st Claim? Do you have a copy of the 1st SA Claim?  About time to visit your VSO and request a copy of the Original 1st SA Claim. Certainly wouldn't be the first time a VSO screwed up filing a claim.

According to the TV Lawyers "Hustling" for Mesothelioma Claims, all Ship Builders, Squids & Jar Heads with Historical Shipboard Service, were exposed to Asbestos.

Link to comment
Share on other sites

  • 0

Berta thanks for the clarification. Definitely makes your head swim. At least I will know on the next claim I file. 🤔

I do believe I have reason for a CUE on the actual denial,. I just have to get the details down correctly. Have an IMO/NEXUS ltr and DBQ from Dr. Bash. I have a DBQ from my treating certified Sleep Doctor and waiting on a statement from him that will hopefully say my in-service symptoms make it "more likely than not" that I had it in service and possibly caused by my GERD, Rhinitis, and Chronic Sinusitis based on medical studies published at the time of my original claim. I also have a list of VA Citations approving appealed OSA claims that were based on those same chronic ailments (all finalized before my original claim and denial).

 

Gastone,

I submitted the claim myself and did not go through the VSO. When I talked to him before I submitted the claim he pretty much said he thought it had no merit and refused to submit it. I received a letter from them after I received the denial telling me I was wrong for not going through them. They were still listed as my POA-VSO with the VA so they received notice of the denial. The VSO never told me that he intervened in the original  claim I submitted.

I don't have a copy of that original submission and it's not online. I have requested a copy of my C-file but have not received it yet. Due between June and August this year.

Link to comment
Share on other sites

  • 0

I am unable so far to find the M21 regulation that Dr Shulkin changed- also I forgot he also added to the regulations, per my suggestion, that HLRs should seek CUE befiore a RO decision is final.

Many of the CUE posts here contain arguments- I hesitate to even post those links but they might contain what I am searching for-

I have had decisions reversed in mere weeks due to CUE filed immediately.

One was a CUE and NOD for my daughter ( USAF Intel) and they reversed that fast in around 1997.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use