Cue Claim Denied Sarturday, Awarded Today But.......

[Berta]

I received the CUE "denial" ,as the Director of my RO in email told me Saturday this claim had been denied.

,"it states the CUE under 1151 "was granted with an evaluation of 40% Right lower extremity weakness effective March 1,1993, to Oct 14, 1994, entitlement to accrued benefits CVA under 1151, for right upper extremity weakness, granted with evaluation of 30% effective March 1, 1993, to October 14, 1994."

That was almost what I wanted. There was weakness of the left extremity as well rated I think at 20%...will check that tomorrow in the old 1998 decision..

It then goes on to say

"Please Note, that although after the 6 month period the cerebralvascular accident under 1151 became two separate disabilities ,this did not create a change in evaluation for payment purposes , as the combined rating for accrued purposes remained 100%, and entitlement to accrued benefits for special monthly compensation based on housebound criteria remained unchanged."combined rating for accrued purposes remained 100%, and entitlement to accrued benefits for special monthly compensation based on housebound criteria went unchanged. ."

"Thus no additional accrued payment is owed."

Say what???????

But I won the claim...and it contains another CUE.!

If they didnt owe me money they could not have granted it, because there would have been no manifested outcome detrimental to me.

My medical and legal evidence which had been established in the veteran's lifetime warranted 100%

in his lifetime. In 2012 they paid 6 months at 100%,plus SMC , for the veteran, for me and one dependent child. They owe me from March 1, 1993 to Oct 14 1994. (100% P & T and SMC for the veterabn, me, and one child.

NONE of my legal/medical established evidence submitted with this CUE as to my husband's continued 100% from March 1993 to Oct 1994 was mentioned or listed as evidence.

It clearly supported the CUE.(I posted what that evidence was already here...Impeccable.prime facie...)they are not disagreeing with the 100% p & t rating, March 1993 to Oct 1994, .they "granted" the CUE...they apparently dont want to pay me the additional accrued they owe me and nothing in the decision says why.

Under this statement

It then goes on to say "the combined rating for accrued purposes remained 100%, and entitlement to accrued benefits for special monthly compensation based on housebound criteria remained unchanged."

It then says :

"Therefore no additional accrued payment is owed."

Say what? no regulation or explanation whatsoever for that.

I am as eligible for accrued benefits as I was in 1997, and 2012 when I was awarded the mc cue CLAIM THAT ALL THIS IS BASED ON.

After being emailed by the VARO director Sunday night ,that this claim had been denied, I am astonished (and jumping for joy) on having more proof that these people cannot even read.,let alone handle VA case law and regs.

This will get more interesting by the day.

My USPS man calls me the Amazon Queen, I think that was an old Humphrey Bogart movie.

I buy a lot from Amazon.com

I better tell him he should start calling me Cinderella instead because I apparently have some very mean step MOTHERS at the Buffalo VARO. But I know a Prince will eventually show up and shove my ignored evidence in their face.

Aint this the shits?

If their 2012 decision I filed CUE on did not have a financial outcome that I was due, they could have denied the CUE on that basis.

BVA does that all the time ( 'no Cue exists if there is no manifested detrimental outcome')

But the CUE I filed in 2012 was granted in this decision. and

Edited March 9, 2015 by Berta

[ketchup56]

I actually woke up at 2 AM to read this decision again....it is so unbelievable.

I predicted to Ms. Hickey this claim would be screwed up too.I emailed her yesterday that these issues and the responses from my VARO

are starting to border on the Absurd.

Free Spirit..I think it is both reasons. As well as a deliberate stall because they owe me money.

Ketchup said:

"On Friday i get an email from my regional director that a expedited soc is being sent but at the same time she's sending my files to VACO general counsel for another review"

Is this for a FTCA case or a Section 1151 Peer Review? It's for eed for a pending claim they made a decision on in 1983 for the same disability I just got service connection for. See bva docket no.12 05 464 Decision date 5/2014.

Is your RO director from Buffalo VARO? Oakland varo Julianne Boor

How many other VARO directors are sending stuff to VACO that should probably not need to even be there in the first place?

And doesn't that show they have no control over the reckless ways some of these claims have been handled?

If more vets and survivors start complaining via email to Sec Bob or to Under Secretary Hickey, with valid complaints as to the adjudication of them, ,

the upper echelon of VA will start to see what claimants deal with.

I certainly am not putting up with this crap anymore.

I am collecting ALL of the ridiculous decisions I have gotten over the past 20 years, to figure out the best way to use them for other similarly situated VA claimants. I think my Chapter 35 was the only claim they didnt screw up.

But they did screw up my daughter's Chap 35 claim. She is a veteran.

I sent the Under Secretary the email from Buffalo in which the director said both of my claims were denied.

I asked them to CUE the 1151 denial already.I sent the CUE to Ms Hickey at VACO as well.

My RO director apparently didn't even understand that the decision clearly says my CUE was "granted."

I cannot imagine why any RO director ,who I assume has leadership ability ,and might well be a veteran themselves,

would want the VACO (VBA,OGC, and VHA are all umbrellaed within VA Central Office)

to review probative claims and find out just how incompetent their RO claims employees really are.

If other ROs have done that as well,due to our complaints to Secretary Bob and to the Under Secretary,,

this might become the BEST thing that has happened to us victims of illiteracy and incompetence at the RO levels ,in decades!

VACO will know and then , as likely as not, Fox News will find out.

[Berta]

Ketchup

I found your docket# in an older post

Docket No.12-05 464
The remand in part states:
Furthermore, one week following separation from service (January 1983) the Veteran applied for VA disability compensation. He did not name the disability, but simply referred to his service medical records. He failed to report for an examination.
He did not name the disability, but simply referred to his service medical records. He failed to report for an examination. Under these circumstances, the Board cannot be sure that this claim involved a back disorder, but it is worthy to note that the claims file does not show that he has ever filed a claim for any other disability other than his current back disability claim.

Under these circumstances, the Board cannot be sure that this claim involved a back disorder, but it is worthy to note that the claims file does not show that he has ever filed a claim for any other disability other than his current back disability claim.

The Board acknowledges the negative etiology opinion by the VA physician. However, that opinion is based in large part on the lack of service records documenting the claimed back complaints. Again, the Veteran's service treatment records cannot be located. However, the Veteran's testimony (and statements of his ex-wife) concerning his in-service visits to sick call for treatment for low back symptoms is competent lay evidence and the Board finds no persuasive reason to doubt the credibility of such lay evidence. Thus, the Board finds that it is reasonable to conclude, resolving reasonable doubt in the Veteran's favor that the Veteran's preexisting low back disability permanently worsened beyond its natural progress during service.


ORDER

Service connection for degenerative disc disease of the lumbar spine is warranted. To that extent, the appeal is granted.

The remand includes:
"In particular, the examiner should (a) comment generally on the functional and industrial impairment caused by the service-connected low back disability; and (b) indicate whether, without consideration of the Veteran's age and any nonservice-connected disabilities, the service-connected low back disability results in his unemployability.'


http://www.va.gov/vetapp14/Files3/1423398.txt

This decision states
"Here, the Board observes that the Veteran's service treatment records (STRs) are missing. According to the National Personnel Records Center (NPRC), the Veteran filed a claim at separation and the STRs were sent to San Francisco, California on January 24, 1983. "

The BVA correctly states in this same paragraph that the VA has a heightened Duty to Assist.

Have the STRs shown up since?

Did SSDI obtain them for your SSDI award? Have you checked on that?

They had to have much of your Military records to properly determine your SSDI amount, as SSDI benefits stem from ALL wages received to include military service pay.

Maybe it is Great that VACO will be involved at this point because, the BVA certainly verified that you had a "pre -existing back disorder." and had filed a claim.

Can you scan and attach a the SOC here? (Cover C file number, name, address prior to scanning it)

You had a documented Back injury that pre existed service, and ,as the BVA stated, you filed a claim immediately after service and had never claimed any other disability.

Did you actually get the exam notice? Your C file might reveal they either never sent it to you or they sent that to the wrong address.

You can fight this for the best EED you can get ( the day after your discharge).

Documented in service disability,becauise it was pre-existing and was not suddenly cured because you entered the military, documented claim filed in 1983, documented receipt of STRs in 1983.

Have you considered hiring a lawyer for this?

The BVA, in a very old decision gave me and then gave a vet I helped in his decision , clues.that ultimately brought us both awards. There are nuances in many of their decisions that help us.

I feel the BVA is suggesting that the older claim is valid and should be pursued because otherwise BVA would not have noted the above statements on it.

The question is , How does one file a CUE on something that does not exist? ( a denial of that 1983 claim)

or does it exist? Did you ever get a formal denial of it? That is what contains the CUE

I noticed the BVA sure didnt say it had been "deemed denied" which was often BS in the olden days of VA.

If you succeed, the EED will be the day after your discharge.

FIGHT THIS! But make sure you have a copy of your C file, and ,personally, I would be still be seeking those STRs.

[ketchup56]

Everything you just posted is exactly what im arguing. The claim from 1983 I never received notice one way or another that it had been considered and denied. No notice it just sat there all these years until this subsequent claim was adjudicated and finally awarded by bva. You noticed also that vlj noticed that in his decision which is damn good evidence for the correct early effective date. Yes I have complete copy of my c files and there is no notice of anywhere. I'm fighting this tooth and nail on the PENDING CLAIMS DOCTRINE which was also written by bva attorneys themselves. I'm 70% tdiu as of now.The 70% should go back to 1983 day after discharge if im correct barring Fenderson ratings. Im sorted happy this is going to general counsel first before going to bva to get their reasons and basis on paper then attack their reasoning from there. If needed I will get this to an attorney for Cavc.

[ketchup56]

BTW im still waiting on the soc from Oakland varo. Can't wait for this laugh. Will post back upon arrival.

[Berta]

Yes, General Counsel ......the smartest sector of the VA, (but I also think that of the BVA as well.)

Although I had quite a battle with them years ago and then a minor skirmish a few years ago (and recently being stymied on some FOIA requests,to OGC, they certainly know VA case law in and out.and can READ!

Pending Claims Doctrine. You have sure done your HOMEWORK!!!!

It is delicious. Here it is.

http://www.bva.va.gov/BVA/docs/VLR_VOL2/Copy5--JohnFussellandJonathanHager.pdf

I just wish we claimants didnt have to become lay "lawyers" too, to succeed in our claims.

But I always advise getting a lawyer when going to the CAVC..

[Berta]

Delta posted this years ago here:

More discussions too here under google hadit search.