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

[HitemStraight]

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 !

 

[pwrslm]

 So with a 100% condition already for an unrelated condition, you should have the two 30%'ers rated as bilateral, which would give the additional 60% for the SMC.  That's basic.

 

This is like a poorly trained clerk making an amateur error that a supervisor should have caught.

 

How do you ask them to CUE themselves?  I think when you make the formal appeal, its according to regulation, but reconsideration requests for them to CUE their error should be a simple sweep it under the rug error that they easily correct just as soon as you point it out.

Edited September 6, 2015 by pwrslm

[HitemStraight]

Buck - Yea, I read the directive that Bertha posted. Seems like this form is required for all now. At least that is what they told me in the letter I received today. Doesn't make sense when they are being asked to CUE themselves. Just correct the friggin error and don't ask for stupid redundant forms !!

RUREADY - I am filing the CUE for the SMC-S that should have been awarded for the additional 60% required for SMC-S. I have been rated 100% for back condition for 35 years; I had two hip replacements for degenerative hip disease, secondary to the back condition. They awarded 100% additional rating for each hip for the convalescence period of one year following surgery, and awarded SMC-S for that time period. They then awarded the 30% minimal rating for each hip after the surgical convalescence period of one year had expired. But, they then removed the award for SMC-S even though the two 30% ratings were now in effect, as I said in my post above. The VA giveth and the VA taketh away.

This is what I filed the CUE for - They should not have removed the SMC-S after the convalescence periods had expired, as they awarded the two bilateral hip ratings of 30% each and that still qualified for SMC-S, as I explained in post above also.

I can't explain any clearer than that ....

As for the Form 21-526EZ, I suppose I will just have to file it along with the CUE as supporting document. Doesn't seem appropriate or make any sense to file that form as it just duplicates information that I already filed with the original claim. I'm not asking for a new claim, I am just asking for them to correct the error they made on my recently decided claim. So I'll go ahead an file the damn form ....

I filed the original claim in February, 2014 and it was decided in July, 2015 (17 months). I had to file this CUE just to get what they should have given me in the original claim's decision in July. Now they want me to file this stupid redundant form for the CUE ..... VA BS

The good news is they only took one week to get out the letter. They received the CUE on August 26th and the letter was dated on September 2nd. That's an improvement. At least I didn't have to wait 6 months just to get a letter telling me to file a form. I'm blessed !!

 

[FormerMember]

Keep one thing in mind. If you have not received the proper rating and less than a year has passed, you file a NOD on a 21-0958 and say "Yoohoo? You made a little mistake. I'm entitled to SMC S and here's why."

A true CUE claim is becoming more and more confused on this site due to misinformation. If a claim is alive and still viable and an error occurs on a rating, it technically is not CUE until they close out the claim/appeal for lack of action. If you are still actively appealing the claim, CUE cannot exist. Error, yes but not CUE. CUE is a Motion for Revision of an old, closed claim you wish to contest after you have no legal options left such as appeal to the BVA or the CAVC. Certainly it can be described as a "clear and unmistakable error" but it is not an irrevocable error unless you fail to appeal. If you got the short straw on a rating and feel you got screwed, you file the NOD and contest the disparity. Filing a new 21-526EZ is a new claims process and it not the proper legal path to follow if you are dissatisfied with the rating. VA will not correct your semantic error and tell you to file the 0958.

I hear CUE bandied about here as a repair order the moment you get a lowball rating or a denial based on incomplete or erroneous information. As long as a claim is viable or still in appeal, it can be repaired or modified via a NOD and a substantive appeal. A CUE claim is a Motion to Revise a previously decided claim that is closed. When you file for CUE, you are legally referred to as the Moving Party or Movant.  When you file a VA claim, you are referred to as the claimant. When you file the NOD or Form 9, you are still the claimant. When you file an Extraordinary Writ, you are called the Petitioner. Each legal mechanism has it's terms that Vets need to become associated with to avoid confusion. CUE can also mean 'clear and unmistakable evidence' depending on it's usage in a legal document.

Save yourself a lot of lost time and grief and make sure you are arguing oranges to oranges rather than apples. 

Edited September 6, 2015 by asknod

[Berta]

Hitemstraight, thanks for that info...Yes you have a valid CUE basis , the same as mine that I filed for SMC in 2003.

I stated the CUE was in their "lack of consideration" under the SMC Mandate ( 38 CFR 1114) as an inferred issue and sent them a brief excerpt from the VBM by NVLSP that said the same thing.

And a CUE does NOT stop the NOD clock.

There are more lawsuits against VA on this matter than I thought. I think  the AL COmmander (Helm) made a great point:

http://nylegion.net/helm-admonishes-va-over-rule-change-in-claims/

"Helm said that hundreds of thousands of veterans and family members will be harmed by VA’s new ruling. “It seems to me that VA is trying to reduce its claims backlog by denying veterans their right to file for benefits via any written communication available to them. Forcing men and women – especially those with serious mental conditions — to use a standardized form in order to get their benefits is a cold-hearted decision that betrays VA’s mission.”

This bears repeating "It seems to me that VA is trying to reduce its claims backlog by denying veterans their right to file for benefits via any written communication available to them." sure they are.

Another lawsuit mentions how the new forms do not 'accommodate' disabled  veterans who cannot file their claims this way. Lack of accomodation is a strong word in the field of discrimination to the disabled.

There has been discussion here as to the format I have recommended many times...asking VA to CUE itself within the appeal period.

NVLSP was surprised at how fast that worked for me when I got a ridiculous denial of my AO IHD claim. Late December  2011. The award is dated January, 6, 2012.

One of their lawyers  encouraged me to use that tactic if I needed to again.

And it has been working for me ever since.

But since there is not any support for this technique here, (except for one of two claimants it also worked for here ) I will refrain from even suggesting it anymore.

(BUT will continue to use it myself at every single opportunity I get !!!!!)

VA isnt our enemy...Time is!  A GCY claim can render a faster decision, that is legally accurate but obviously not in every case.

I agree there is a a lot of lousy CUE advice here.And I have mentioned many times that this is a tactic I made up (after considerable study of CUEs at the BVA and CAVC)  and there is no regulation for it at all..............yet.

Erroneous decisions that contain legal errors to any claimant's detriment are  a big part of the backlog and can and should be resolved right away, before a NOD should even be needed.

But these are my opinions, based on my experience and CUE regulations.I will refrain from answering further CUE questions.The answer is probably in our CUE forum anyhow .

Except for one thing,....Hitemstraight..........

I suggest that you refer to and attach the CUE to the EZ form and then file it with IRIS as a Complaint.

Put your citations for the SMC Mandate in the IRIS,  and I think there is a templane here for the exact same CUE that I filed on SMC, or maybe my actual 2003 claim.

But mark your calendar to make sure they dont piss away your NOD deadline, like they tried to do with me, even sending me a 'regulation' they made up!

 

 

 

 

 

Edited September 6, 2015 by Berta

[Buck52]

Seems asknod hit the nail right smack on the head  with his explanation, he explains this situation very well as  what the veteran needs to educate him/her self with each legal mechanisms as its terms to be associated with and the process.

1..As long as a claim is viable  or still in appeal=it can be repaired or modified with NOD.& Substantive  Appeal.

2.. CUE claim is a motion to revise a previous claim that as been closed

things to remember as asknod mention 

When you file for CUE, you are legally referred to as the Moving Party or Movant.  When you file a VA claim, you are referred to as the claimant. When you file the NOD or Form 9, you are still the claimant. When you file an Extraordinary Writ, you are called the Petitioner. Each legal mechanism has it's terms that Vets need to become associated with to avoid confusion. CUE can also mean 'clear and unmistakable evidence' depending on it's usage in a legal document.

This new form 21-526 EZ is new and went into effect March 25th 2015  and VA  says to file this form for any new type claim  any other forms filed will be rejected and claim will be denied.

send the form to your Designated VA Intake center.

 

I read that some where just can't remember but it maybe in the CFR's  now?

 

....................Buck

[HitemStraight]

Thanks to all for your input -

After reading everyone's replies I have a good idea as to what I need to do.

First - The VA did not mention the CUE directly only that I needed to file the Form 21-256EZ in order for them to process it. If you look at the form it is just redundant information already given in the original claim. Name, rank, serial number. But I will file the form, either in IRIS, on eBenefits or send directly to the VARO where I submitted the CUE letter. I haven't decided yet. I think that the 'cat is out of the bag' so to speak as they already have the CUE letter in hand. I would not want to confuse the issue by filing a NOD now. (I had already planned on filing a NOD within the years time for conditions which they flat out denied service-connection for, even though I had medical records and nexus letters indication that conditions were related to my 100% rating. But that is for another topic)

This CUE request clearly identifies and error by the RVSR. He/she simple did not apply the law correctly, and I want that corrected. There is no material evidence that needs to be submitted. Just look at the probable error and fix it. Period.

Second - I checked out the M21's and the law and nowhere does it say that CUE cannot be filed within the one year NOD appeal time frame. All it says it that there is no time frame to file CUE. 

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' .........

M21-1MR_iv_2_SecB(2)(a) Revisions of Decisions states - '.... a decision of a duly constituted rating agency or other agency of original jurisdiction is final and binding on all field offices of the Dept. of VA as to the conclusions made based on the evidence on file at the time VA issues written notification in accordance with 38 USC 5104.

Here it clearly states that 'final and binding' is when a decision is made. It mentions nothing about being final and binding at the end of the one year appeal time period. I interpret that to mean once a decision letter is sent it is considered  final and binding until such time that a CUE or appeal (NOD) is filed.

M21-1MR_iv_2_SecB(2) (b) goes in to say -

....'Exceptions:

** upon de novo review ......

** when there is difference of opinion ......

** when there is clear and unmistakable error'

After all I am asking them to correct an obvious error they made. I am not asking to change decisions of non-award of service-connection of rating decisions etc, which would all be basis for NOD.

I am going to continues on with the CUE request for the SMC-S at issue here, because I think that is the correct and right thing to do, And also, as stated above, the cat is out of the bag since I already sent the CUE in. Might as well continue on and see what happens.

** I will file a NOD in several months on the other service-connection conditions which they did not award. I need to get more additional doctor nexus opinions and past medical records together for that. i.e.- I was awarded 30% for PTSD which was effective only to my recent C&P with the psycho person this past April. The psycho person sat there and told that I had never been treated at a VA facility for PTSD or any other mental disorder. Basically called me a liar. On that comment and input from her, the only awarded PTSD to the April date of my C&P exam with her. In the decision letter they noted that I had filed for 'combat depression' back in 1980. I sent for copies of my VA records from another VA Medical Center in the State I lived in then. They came two weeks ago, and lo and behold, there was my records from the psychologist and psychiatrist that treated me for several years. This will be part of my NOD among others !!!!