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CUE I filed regarding SMC-S non-award; they are asking for Form 21-526EZ?

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HitemStraight

Question

Briefly .....

I received a decision on my claim on July 23, 2015. The VARO failed to award me SMC-S for bilateral 30% ratings. (30% each for each hip replacement). I am 100% rated P & T and the two 30% ratings combine with bilateral factor to 56.1% rounded to 60%. I was not awarded SMC-S for these ratings (100% plus 60% additional). This is what I filed CUE on.

I posted back on August 15th the following post:

 http://www.hadit.com/forums/topic/63768-va-awarded-smc-s-then-removed-dont-understand-why/ , and I received excellent information and advise from this forum.

I went ahead and developed my CUE request basically stating that the RVSR committed CUE in not awarding the SMC-S based on 38 USC 1114(s) with supporting exhibits included for Combined Ratings Table, Bilateral Factor and the related Statues. This was filed in the form of a 2 page letter request with bold Request For CUE at the top of page 1.

Today, I received a letter from the VARO stating that I must file all claims for compensation on Form 21-526EZ, and they would not do anything until this was done. Also, they did not specifically mention the CUE request. This was basically a form letter they sent me.

I did not think I needed to file a CUE request on a standard form for compensation. This is not a new claim and VA rules state that they should not treat a CUE as such. If I file this CUE again on the requested form, won't this set it up as an new claim? I do not want this!! I am CUEing my recently decided claim .....

Need help understanding this, what I should do, and any comments with those who have filed CUE's recently !!!

Thanks !

 

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<<<CFR 3.105(a) states - ....... 'Previous determinations which are final and binding including decisions of service connection .....' 'will be accepted as correct in the absence of clear and unmistakable error' .........

Time to take a class in VA law. Final and binding means a legal finding which cannot be overturned without a determination of CUE. Final and binding occurs after the appeal period runs out with no action on your part. What we have is a disagreement on what constitutes CUE. I have no argument with Berta's description of it other than to say calling an error CUE during the appeals window following denial to be the wrong legal term. Sure, it's most definitely a "clear and unmistakeable error" but not one that is final and binding-yet. It is an error on the RVSR's part that, left uncorrected, will become final and binding forever without action on your part.

Read Gilbert v Derwinski to further understand. Clear and unmistakable error is recognizable to anyone with half a brain It is described in Gilbert as something everyone can agree on. 3.105(e) says it explicitly. Learn legal terms and you will solve your own dilemma. As for filing the 526EZ to "fix" a CUE during an open claim, I strongly advise against it as it will confuse the hell out of the VA as to what you really do want. 

Veterans' problems with the new VBMS techniques are going to be a learning process. They are forcing many with no computer skills to go to VSOs and we know what that portends. J1VO.

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Hitemstraight ..........

It is Great that you are using M21-1MR. I cant live without it.

 "The VA Adjudication Procedures Manual (M21-1MR) mandates that VA adjudicators consider entitlement to special monthly compensation as an inferred issue. VA rating activities are obligated to consider entitlement to special monthly compensation in all decisions where the medical evidence indicates possible entitlement."  VBM  by NVLSP page 333, 2009 edition and probably exactly the same in every subsequent decision.

I didn’t use Bradley V Peake because that was not decided yet when I filed my SMC CUE.And not needed anyhow,.

 

"In Chapter 17, Note 261 of the 2010 Edition of the VBM, NVLSP makes this statement referencing the CAVC Bradley decision:

"the effective date of payment for Special Monthly Compensation is not when the issue was specifically raised by the evidence, but when the evidence first suggested a need for this benefit."

This could give a veteran some leeway on any EED for SMC.

Also this same statement from VBM was used by a vet at YUKU VBN:

"The VA Adjudication Procedures Manual (M21-1MR) mandates that VA adjudicators consider entitlement to 

    special monthly compensation as an inferred issue. VA rating activities are obligated to consider entitlement to 

    special monthly compensation in all decisions where the medical evidence indicates possible entitlement."

    Source:  2009 Edition of the Veterans Benefits Manual by National Veterans Legal Services Program.

 

    Specifically, SMC is mandated by statute as an inferred issue whenever the medical evidence warrants it.  If the 

    VA has medical evidence that warrants SMC (S) consideration, and does not infer SMC (S), then this a CUE!

 

         Equally important is 38 U.S.C. §§ 5110(a), 114(s); 38 C.F.R. § 3.400(o).  Accordingly, SMC benefits must be 

         granted when the veteran becomes eligible without need for a separate claim, any effective date must be based 

         on that point in time when the evidence first supported an award of SMC, which may be well before the veteran 

         raised this issue. “

 

 

 http://vets.yuku.com/topic/72827#.Vex865dLzV8

Unfortunately no one there answered his question.

 

I haven’t found the exact regs yet in M21 –1MR but the NVLSP statement should be enough.

 

M21-1MR is often difficult to read through but well worth the time. They put citations to 38 CFR, USCAVC precedent decisions, and also citstions from OGC pres ops,  making the job easier for anyone needing citations to bolster their claim if they feel M21-1MR was not applied correctly.

 

Alex is SO RIGHT...Gilbert V Derwinski, and my favoraite CUE is the Myler decision. And many successful CUES are citted here in the4 CUE forum.

 

Alex also hit on the KEY Word which I notice many vets here over the years (and widows of vets  too)dont quite get yet.. ....... READ,

READ and then READ some more.

 

Whether regulations, M21-1MR, CAVC decisions, BVA awards ( and all denials at BVA and CAVC too) for many claims it is worth taking the time to do that because no vet rep will do it for you and

the regulations are often the secret to success ( such as reading carefully the rating criteria in the VASRD.........

a super document that allows the vet to know  right from th git go what evidence they need for a higher rating.

 

We have to read out stuff very carefully too..

A vet I know (at the CAVC) is hanging his hat on a buddy statement that the BVA rejected years ago.

 

I have read that BVA denial many many times but his version of what it says, it not what it says at all.

The BVA carefully articulated why they would not accept it, but he never tried  to get a better buddy statement, prior to the CAVC filing..

 

He still thinks it is probative evidence. But it has no merit whatsoever and he does not believe me so.....there is nothing else I can do for him.

 

 

 

 

 

 

 

 

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Thanks Bertha and ASKOD for all your good information .....

I know I do not understand all the legal terms and processes available, as I am fairly new at the claim appeal process (NOD & CUE). Although I filed my first claim with the VA in 1971 and then again in 1980, I have not filed again until the claim we are discussing, which was filed in Feb. 2014 and decided in July, 2015. 

I see the the disagreement with what constitutes a CUE with regards to when it should be filed and final & binding etc. We can agree to disagree on that.

It does not change the fact that the VARO has made an obvious error and I want to bring it to their attention now, when the decision is still fresh. As said before, I want to file a NOD on other areas of the decision, however, I need to obtain additional material medical evidence, and that will take me 4 - 6 months to achieve. 

I don't want to wait to bring to their attention the obvious error in not awarding the SMC-S. It does not involve any additional evidence to be presented in any way. Just for a DRO to review it and make a decision. The right one hopefully !! They were wrong, made an error, and it should be fixed.

Bertha and ASKNOD - I can scan in the CUE I submitted and the letter they sent me requesting the 21-526EZ. You can review and then give any comments if you wish.

I figure that they already have the CUE Request in my file, so I might as well send in the damn form they require, in order to move this forward. Regardless of our disagreements regarding when CUE should be filed.

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3.156(b) is probably what I would cite to based on error. If you have submitted any new and material evidence into the file after the original denial/ reduction/failure to grant, it requires a de novo review of the existing claim. The beginning of your claim with the obvious 60% bilateral rating should have set off the alarm bells. The OIG has been making the  rounds this year looking for errors in adjudictions at local ROs. One of the most egregious errors they are committing is failure to award SMC S where it is due. Whether it's poor training or they are so completely dependent on the M21 Cray Computer to give them the right answer, they are getting it wrong more often than not. Relax. It's payable all the way back to when it was owed. Submit that info again and it will be sitting at the top of the .pdf c-file when they open it again. Seems like a huge waste of time to open a whole new claim when you already have one open. I've kept my original claim open since March 1994. It's back at the BVA again. Best of luck.

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Is it possible to file two NOD's on one claim?

i.e. - file a NOD requesting a CUE on the SMC-S non award we have discussed here. Then file another NOD in several months for the denial of other service connected conditions in the same claim?

Just wondering !

 

 

 

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Technically, no, unless you have deferred claims issues. You'd file the NOD on  the denial that was decided and then be forced to file on the second one or batch if it's more than one. VA tends to bifurcate claims and make then stand alone ones. This becomes a big problem when you've filed secondaries and VA defers them or denies them outright. With SMC, the big problem for you is going to be the delay and not so much being prevented from getting it at all. VA has never done anything rapidly and loves to pretend ignorance or an inability to understand what you are asking for.

 

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