ptsd Fully Developed Cue

[SigBnSoldier]

Submitted CUE to Los Angeles RO on 5/6/15.

Evidence included-

7/21/2004 VA Form 21-4138 stating I was homeless with no mailing address at the present time

10/21/2004 Denial Decision letter mailed to address I had told VA I no longer lived at.

01/19/2005 2nd mailing of denial decision letter sent to the same wrong address again. This time RO handwrote in "C/O New Directions" but sent the letter to the same wrong address.

08/31/2004 Social Work Progress Note from VAMC stating place, address and phone number of new address in Santa Barbara I could be located at

11/10/2004 VAMC Los Angeles inpatient progress note stating I was returning to Santa Barbara.

01/19/2005 VAMC Los Angeles discharge summery note stating I was again returning to Santa Barbara Rescue Mission.

21-4138 Stating VA failed to follow proper mailing procedures and did not provide me with appellate rights. That I later, in 2012 won service connection for PTSD with Bipolar Disorder, and that effective date of 4/13/2012 was clear and unmistakable error, as well as the other contentions of that 2003 claim remained appealable.

So folks, do you think I've rebutted the presumption of regularity with this CUE claim?

[Berta]

About 10% of what I learned on CUE came from the VBM by NVLSP. The other 90% came from the BVA.

The VBM has plenty of info on CUE but I read hundreds of BVA awards and denials for CUE before I ever filed one.

Have you searched the BVA web site for any similar issue like yours?

I think their search archives go back to 1992...terms like  "constructive receipt ", Bell, even maybe the M21-1MR citation you noted can be searched there.

 

 

 

[SigBnSoldier]

Berta-

 

I went a step further and searched CAVC, seems like BVA is denial happy.

 

Found a similar case, but the guy got shot down because he didn't perform due diligence.  That is the exact worry I have, I received a copy of my claims file but didn't notice the improper mailings in the claims file till about two years after I received it.  

I have a suspicion BVA will deny and CAVC will affirm because I didn't file a NOD within 1 year of receiving my Cfile which contained the decision letter I never received.   

[SigBnSoldier]

An update-

 

Spoke with a VSR on Wednesday, after sending an email to Secy Bob.  He was neither positive or negative about the claim.  He mentioned my claims file was a mess and wanted to hear my story.  I told him as best I could.  He suggested I consider a DRO hearing, but if I did so my DRO review would have to be sent to a different RO.  Gave me his number to call him back with my decision after my wife and I talked about it.

We decided to let it roll at the LARO and if the DRO denies it I probably have better chances at the BVA.  The VSR told me I'd have to win this on a clear and unmistakable error, but he noticed I had previously been awarded and EED for Asthma of 8 years and that the DRO might be able to award it.  I let him know that was a completely different theory for the award and I didn't think that would work for this.  He didn't really tell me any more about that.

I made it clear to him that VA did not follow  38 C.F.R. 1.710 (d) after I had informed them I was homeless, living on the streets with no maiing address.  That VA proceeded to mail decision notification, twice, to an address I had informed them I was no longer at.

He was emphatic about not allowing this CUE to die if the DRO did have to send an SOC.

I asked it it would be a couple years, he wasn't all that keen on giving me a timeline, but said he thought it'd be more in the order of a couple of months for a decison from the DRO.

There it stands. 

[FormerMember]

You don't need the M21 crap. The law is dispositive on the Presumption of Regularity of the mail. If VA mailed it to the wrong address, it is not considered delivered. End of argument. The notice is not considered delivered until some communication on your part is received by VA stating you did, indeed, receive it. At that point equitable tolling kicks in and you have one year to pitch a bitch. 

Take a gander at this. Rios was the first case of this nature and still stands as on-point law covering mailings.

https://asknod.org/2011/09/27/cavc-rios-v-mansfield-2007-presumption-of-regularity/

[SigBnSoldier]

Hey, re reading the original denial letter and on contention 6 of the VA actually acknowledges I have no address!  But then they go ahead and mail it to a wrong address?  WTH?

Here's the wording in bullet 6, "A similar letter to cover the issue of numbness of right arm residuals, could not be sent for lack of a proper mailing address.  Regulations require this office to notify you that you have the right to provide medical and other evidence showing the existence of your claimed condition, and that they were incurred in, aggravated by, or otherwise linked to your military service.  You have one year from the date of notification of this decision to provide this information."

Kinda seems VA knowingly mailed to the wrong address to wash their hands of the claim.

Any thoughts on this?

Edited July 5, 2016 by SigBnSoldier
forgot something

[FormerMember]

Shooooo, doggies. I had to reread this whole thread to get the best feel for it.

1) you have them on Presumption of Reg on the mailings.

2) Makes no difference on filing a NOD about finding the evidence in the c-file 2 years later. I did that and won.

3) you got them by the short hairs on coming down with anything-even a runny nose, within the first year after service. It's an autowin. 

4) do not do a DRO in LARO. You'll lose. They don't have authority, even with three signatures, to cut a check that big. VBA VACO standard protocols is to punt on 4th and long $. They let the BVA judge take a swipe at that pinata. Could be they'll try to bluff you and deny to see if you go to the CAVC. 

5)Bell v. Derwinski is only good post-October 31,1990 for VAMC or VBA constructive possession argument.  

6) If you have the two documents showing failure to txmit to Vet, you have them.

7) Win or Die.

Sorry I fell out of this one and didn't get back sooner. I've been working a big stack of claims and studying for the non attorney practitioner test. Oh, yeah. And the heart failure thing, too. This isn't CUE. It's equitable tolling of an unfinished claim. You sort of have to characterize it as a free-standing claim which is awkward but best describes it. Normally EED arguments after a year with no NOD for an earlier date are toast. You have to do a CUE or prove the claim is still pending. Guess which path is easier with the sum of your non-delivered decision? I still like pulling both triggers of the shotgun and run them side by side as different theories for the same problem. Who cares how you win.