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Grover, Supra And Mcgrath V Gober Yum Yum

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Berta

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Somewhere here I posted how to get the VA to CUE itself during the appellate period I have done that many times.since it first worked in around 2005 for me.

I have had success with this tactic but there is no regulation for doing this so maybe some here think I am BSing about it.

That's OK. Today as I started going through VA crapola from 1983 to present, to make sure my file system is up to date, a miserable task, but
good organization gives me great peace of mind and helps ward off VA induced PTSD, when you get so stressed that cannot seem to find a paper document or VA decision that you need, I found a BVA decision I kept regarding the same premise I have filed CUE on-within the appeal period...I used it in my 2012 CUE because it is a legal BVA decision and also cites VA case law such as Grover, so I didnt have to do that.I only needed to cite. 38 CFR 4.6.
.
CUE in the June 1989 rating decision but resolved in 2008. ( the decision is long and there were many other issues as well)
The formal CUE however was rasied in 2006 so this veteran did not do too bad with that issue at all.
The veteran could have used the same reg I have used to possibly get the VA to CUE that 1989 decision, within the appeal period she had.She still won the CUE and the retro but Time is our enemy, not the VA, and she could have also died by the time the BVA awarded that claim. A fact we all must consider.




"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."

"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. "

http://www.va.gov/vetapp08/Files5/0844495.txt




Also the decision makes this point that has come up here MANY times:

"Additionally, this analysis is supported by the Court's
holding in McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In
that case, the Court stressed that the date of the medical
evidence itself is irrelevant where an initial service
connection claim is pending. In McGrath, the Board had found
the earliest date that a VA examiner had diagnosed PTSD as
"the date entitlement arose" and used that date, rather
than a much earlier date of receipt of claim, as the
effective date. The Court found error and reversed the
Board. The Court found that the date that the veteran
submitted the claim ultimately controls the effective date
for benefits. Thus, assuming arguendo that an irritable
bowel had first been noted in the medical record on September
7, 1989, where the claim had been pending earlier, and the
later diagnosis supported the claim, the date of the claim or
date released from active service, whichever applies, still
controls the date of benefits. "

Recently the VA pulled this on someone here but I forget who.


"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. "

http://www.va.gov/vetapp08/Files5/0844495.txt

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I agree with Carlie. (Welcome back, Carlie, and Congratulations!)

NO, I dont think you are BS'ing us about asking the VA to CUE itself! In fact, I did just that in an email to Allison Hickey just a few days ago. Your posts are so informative and so accurate, I look back at them from time to time when Im working on my appeals. In Va vs Berta, we know that Berta wins, its just a matter of how long it will take.

Asking the VA to Cue themselves CAN take years off the appeal time. The only caveat about using this is for Veterans to not regard "asking the VA to CUE themself" as a NOD, and neglect to file a NOD if the VA does not respond within 11 months or so.

YOur idea about "ask the VA to Cue themselves" is so good, it should be in every Veterans advocate's "play book". The idea is good on multiple levels: Importantly, it can help the appeals backlog, because if VARO handles this properly, it may never reach the appeal stage.

The problem is not whether or not we should ask VA to cue themselves, when cue exists, but how to do just that. I keep getting better and better at this, so the way I ask VA to Cue themself is to

First identify the CFR, or case law that they erred on. I used to do things like, "The RO is in error because they failed to mail a written decision on the issue of _____."

I dont do that anymore. I say, instead, "The RO decision is in error as they failed to comply with 38 CFR 3.103 (f) which states:

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph © of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered.

end of 3.103 (f) quote;

I put the pertinet part in bold, and then explain I was not notified about the issue of _____ "reasonably raised" on (date). Sometimes I even point out the regulation states "will be" notified not "may be" notified.

I see this a lot. VA simply does not adjuticate all our claims. This is error, in violation of 3.103 (f).

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Carlie You ARE TOPS in my Book TOO !!!

Broncovet, Carlie is one of many superbly knowledgeable advocates here, as you know , who fought them back until they caved in.

It isnt really that they 'caved in', it is when we force them to apply VA regs to our claims and evidence, and when they learn how to read ..and do ..what they should have done in the first place.

In the VA OIG topic here today, on RO errors, this is exactly why we are in backlog and it is still growing.

I say put Petreaus into the Secretary's role and Carlie as the Under Secretary of the VBA and then only hire disabled vets who are able to work, for all the other VBA positions ( which could open up plenty of open positions at every level of the VBA (to include the ROs)if the new Accountability Bill really will have some clout.

Of course I am dreaming of the impossible.

I don't think the Accountability Bill includes all those bogus C & P quacks,whose opinions are often overcome only if the vet can afford costly IMOs .There should be a separate bill regarding the VHA, as well as the one regarding the VBA.

Edited by Berta
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