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?

[john999]

Since you are already sitting on 100% now is a good time to pursue your CUE for EED or any other money matter.  Vets will sometimes get distracted with a CUE before they get TDIU P&T or 100%  P&T.  I think you want to get everything you can get including any SMC like housebound or A&A before you go hunting the snark.  I went snark hunting for my CUE but I already had P&T.   Both my lawyer and I believed we had a CUE that involved a couple of decades of retro and an EED back to 1971.  Eight years later we crashed and burned at federal court.  The VA did so many things wrong but they always had themselves covered and I still don't know exactly how?  I could not believe we failed at the Vet Court of Appeals.  This was all due to not filing a NOD when my initial rating letter was mailed to the wrong address and returned to the VA "return to sender address unknown" because the VA had the wrong address, but somehow it was my fault, or I should have known, or something and I lost.

 

   John

[SigBnSoldier]

15 hours ago, john999 said:

Since you are already sitting on 100% now is a good time to pursue your CUE for EED or any other money matter.  Vets will sometimes get distracted with a CUE before they get TDIU P&T or 100%  P&T.  I think you want to get everything you can get including any SMC like housebound or A&A before you go hunting the snark.  I went snark hunting for my CUE but I already had P&T.   Both my lawyer and I believed we had a CUE that involved a couple of decades of retro and an EED back to 1971.  Eight years later we crashed and burned at federal court.  The VA did so many things wrong but they always had themselves covered and I still don't know exactly how?  I could not believe we failed at the Vet Court of Appeals.  This was all due to not filing a NOD when my initial rating letter was mailed to the wrong address and returned to the VA "return to sender address unknown" because the VA had the wrong address, but somehow it was my fault, or I should have known, or something and I lost.

 

   John

John, is your CAVC case published?  I'd like to read it.

I'm already at SMC-S, pursuing increases or additional ratings would not be beneficial.  My code sheet says all conditions are static so a review/c&p is unlikely.

I did file CUE for this but it was closed and combined with my last claim that awarded me the SMC rating.  It was briefly mentioned in reasons and basis and was denied.

I filed a NOD on this for presumption of regularity and eed for three contentions awarded in this most recent claim that were denied in my original claim for benefits and the decision notice was mailed to a former adress even though 3 months prior I sent a 4138 telling VA I was homeless and had no address for thdm to contact me.  I continued to be homeless for the next 4 years.

I have a date stamped copy of that 4138 and a cfile copy of the first decision notice having been returned undeliverable.  I dont believe the remailing of that decision notice was returned undeliverable and that is what I believe VA is denying for.

I assure you, I never received the second notice, I know because I lived in a tent next to a busy southern california freeway and public parks for those years.

Somehow, VA asserts I had the wherewithall to correspond with them.  This I am prepared to fight up to th CAVC level.

VA clearly did not follow cfr 38 3.170

 

Edited September 2, 2016 by SigBnSoldier

[john999]

My case is published and is John T. King vs ?  whoever was the VA secretary about 3-5 years ago.  I don't think the actual question of my not getting the decision ever got into the record because after the Federal Court refused to hear my case my lawyer just threw in the towel.  We had been to the BVA twice and the Court of Vet Appeals twice and I guess he did not want to spend another penny with my case and I was fed up with the VA finding reason after reason to deny my CUE.  If they did not deny it for the facts being "debatable" then they denied it because I could neither prove or disprove that the VA ever read all the facts of my original claim back in 1972-3.   Before 1990 the VA did not have to include the facts of a claim in their decision, so you could not prove they knew the facts or did not know the facts.  The Court concluded that the VA did know the facts of the case even though it was obvious to any reasonable mind they did not know or consider all the facts of my claim.  The BVA admitted this, but the Court of Vet Appeals stuck with the law before 1990 that made it impossible to know if the VA had or had not considered all the facts of the case.  The original rating decision with rights of appeal was sent to the wrong address and so I missed the NOD deadline.  Since I was living on skid row and moving all the time I probably would not have appealed anyway because I assumed that the VA had read all the evidence of the case including my IME which said I was 100%.   I did not know the intricate BS of VA rules and regulations.  What I knew was that my private doctor had said in an IME that the VA had in their possession that I was completely and totally disabled.  I thought that the VA just ignored this evidence and back in 1973 they did this stuff all the time. l got 10% instead of 100% and by the time I knew the facts of the case my NOD deadline was long past.  I did not really understand how badly I had been screwed until years later when I got my entire file and read the original rating decision.  Then I knew the VA had not considered my doctor's IME.  My lawyer knew it by just reading the decision and the BVA knew it as well.  However, they denied it knowing I could not prove it and that my only recourse was to the Court where I would be torn apart because the VA used the rules of the day (1973) which completely favored the VA.  I did not even have a POA for the case. Back in the 70's  the VA did whatever they felt like behind closed doors and what went into your rating decision was just whatever they wanted it to be.  The Court of Vet Appeals said that I had a chance to appeal in 1973 and I didn't appeal so that was that!

[broncovet]

I looked up your case, John.  It looks like you got a JMR, and they denied again.  Mr. Carpenter is good..very good, and he went out on a limb for you.  I think what you had working against you was bigger, tho..MONEY.  If you had gotten your CUE, then most of the other 70's claims...which did not mention "favorable evidence" would also be CUE.  

The courts comparison to Cushman, was interesting, as your case had nothing to do with Cushman.  

[SigBnSoldier]

SOC CAME-

It appears to be a copy and paste from the denial in the decision letter.  Not even worth the paper it's printed on.

 

In evidence listed it did not have my argument for VA disregarding CFR 3.170, protections afforded to homeless veterans, nor did it address my argument for equitable tolling due to homelessness and mental illness.

Some questions-

1.  How legal and specific do I need this form 9 to be.

2.  I do not want to wait around for an SSOC, I have new evidence, should I send a waiver with the new evidence and the form 9?

3.  Should I request a hearing, or do I want this fastrack to CAVC?

 

I know these are decisions only I can make, but your experienced advice would be much appreciated!

Edited September 4, 2016 by SigBnSoldier

[SigBnSoldier]

17 hours ago, SigBnSoldier said:

SOC CAME-

It appears to be a copy and paste from the denial in the decision letter.  Not even worth the paper it's printed on.

 

In evidence listed it did not have my argument for VA disregarding CFR 3.170, protections afforded to homeless veterans, nor did it address my argument for equitable tolling due to homelessness and mental illness.

Some questions-

1.  How legal and specific do I need this form 9 to be.

2.  I do not want to wait around for an SSOC, I have new evidence, should I send a waiver with the new evidence and the form 9?

3.  Should I request a hearing, or do I want this fastrack to CAVC?

 

I know these are decisions only I can make, but your experienced advice would be much appreciated!

Alex, you around?

Anybody want to weigh in?

Edited September 4, 2016 by SigBnSoldier