CUE or NOD

[AgentOrangeWife]

Hello,

FIrst time post:

Can anyone tell me if a rating reduction (from 100 to 60% for a service-connected disability) done without a reexamination is a CUE or a NOD? Less than 5-years rated. Here is a BVA case which parallels my husbands exact situation (citation 1428283).

Thanks for this really helpful website!!

A/O Wife

Edited March 13, 2017 by AgentOrangeWife

[Berta]

Gee , that decision was a good find! I commend anyone who takes the time to search for BVA decisions. You can't use a BVA decision as evidence but you can use any legal point BVA makes, as legal evidence...as well as any Case law citation such as Greyzck v. West, 12 Vet. App. 288, 292 (1999), as in the decision.

When was the proposed reduction letter dated?

Was it for a CAD disability? 

Personally I would use CUE on this first but then I would also file a timely NOD.

The decision states:

"CONCLUSION OF LAW

The December 2011 rating decision that reduced the rating for coronary artery disease from 100 percent disabling to 60 percent disabling, effective March 1, 2012, was improper and is void ab initio.  38 U.S.C.A. ง 1155 (West 2002); 38 C.F.R. งง 3.105, 3.344 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Reduction in a rating that has been in place for less than five years may be based on a reexamination disclosing improvement.  38 C.F.R. ง 3.344(c).  The RO assigned the Veteran a 100 percent rating for CAD in an April 2011 rating decision, based on a March 2011 VA examination.  The RO did not thereafter reexamine the Veteran, but instead based the reduction on a September 2011 addendum opinion.  As there is no reexamination disclosing improvement in the Veteran's CAD, the reduction is improper.  As such, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).


ORDER

The 100 percent rating for coronary artery disease is restored, effective March 1, 2012."

https://www.va.gov/vetapp14/files4/1428283.txt

Note that void ab initio means  "to be treated as invalid from the outset," in legal beagle talk.

Ergo- (therefore) 'No soup for them-  (VA)'.

This sounds like a beauty of a CUE.

I have info here on filing CUE within the appeal period.

That tactic has worked for me.It will not stop the NOD clock however but my last CUE took a month from Denial to Award and I didnt even need to file a NOD.

I cannot think of any exception to the regulations within the BVA decision you posted.

If the VA does this more than we know...it is then one more reason they caused the backlog.

I don't think half of the people at the ROs can even read.Or they are counting on us claimants not to be willing to search and read

VA case law. Good for you (and for your husband!).

 

Others here have used my tactic successfully. It is searchable under Getting the VA to CUE themselves.

 

 

Edited March 13, 2017 by Berta

[Berta]

to add, this is one of many links here as to how to get the VA to CUE themselves.

http://community.hadit.com/topic/51069-requesting-the-va-to-call-cue-on-itself/

and we have some recent templates of that as well.....one is my 2015 1151 HBP CUE.

All you need is the regulations and citations in the BVA decision you posted , as your legal evidence,to prove they violated basic VA case law,to the detriment of your husband.

The CUE would be very easy to write.... a few brief paragraphs,.and send it Attention to and then put the alphanumeric code which appears on the upper right hand side of the letter.

The alphanumeric identifies the RO but also identifies the idiot who prepared the decision.

[AgentOrangeWife]

2 hours ago, Berta said:

Gee , that decision was a good find! I commend anyone who takes the time to search for BVA decisions. You can't use a BVA decision as evidence but you can use any legal point BVA makes, as legal evidence...as well as any Case law citation such as Greyzck v. West, 12 Vet. App. 288, 292 (1999), as in the decision.

When was the proposed reduction letter dated?

Was it for a CAD disability? 

Personally I would use CUE on this first but then I would also file a timely NOD.

The decision states:

"CONCLUSION OF LAW

The December 2011 rating decision that reduced the rating for coronary artery disease from 100 percent disabling to 60 percent disabling, effective March 1, 2012, was improper and is void ab initio.  38 U.S.C.A. ง 1155 (West 2002); 38 C.F.R. งง 3.105, 3.344 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Reduction in a rating that has been in place for less than five years may be based on a reexamination disclosing improvement.  38 C.F.R. ง 3.344(c).  The RO assigned the Veteran a 100 percent rating for CAD in an April 2011 rating decision, based on a March 2011 VA examination.  The RO did not thereafter reexamine the Veteran, but instead based the reduction on a September 2011 addendum opinion.  As there is no reexamination disclosing improvement in the Veteran's CAD, the reduction is improper.  As such, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).


ORDER

The 100 percent rating for coronary artery disease is restored, effective March 1, 2012."

https://www.va.gov/vetapp14/files4/1428283.txt

Note that void ab initio means  "to be treated as invalid from the outset," in legal beagle talk.

Ergo- (therefore) 'No soup for them-  (VA)'.

This sounds like a beauty of a CUE.

I have info here on filing CUE within the appeal period.

That tactic has worked for me.It will not stop the NOD clock however but my last CUE took a month from Denial to Award and I didnt even need to file a NOD.

I cannot think of any exception to the regulations within the BVA decision you posted.

If the VA does this more than we know...it is then one more reason they caused the backlog.

I don't think half of the people at the ROs can even read.Or they are counting on us claimants not to be willing to search and read

VA case law. Good for you (and for your husband!).

 

Others here have used my tactic successfully. It is searchable under Getting the VA to CUE themselves.

 

 

Berta-

Decision letter was dated Dec 2016. I tried the request for reconsideration route and was told no way by the VA (is there a slogan somewhere in that phrase?) and "file an NOD if you don't like it". Guess I ticked someone off.

There were so many laws that were completely disregarded and not mentioned in the decision but I've decided to focus on the main one right now. So here we are! Sometimes I think there is some resistance on "their" part - ha ha. I bet things would be different if disabled Vets were involved in approving bonuses.... or how about the wives who provide backup for the whole process.

So next I will search hadit to find the instructions on how to officially file the cue. It's only 2 paragraphs.

We will file the CUE and hope to hear back soon. In the meanwhile we will watch the NOD clock.

Kindest regards for sharing your knowledge, your dedication and persistence!

A/O Wife

Edited March 14, 2017 by AgentOrangeWife

[Berta]

"Decision letter was dated Dec 2016. I tried the request for reconsideration route and was told no way by the VA (is there a slogan somewhere in that phrase?) and "file an NOD if you don't like it". Guess I ticked someone off. "

That is very concerning,....do you mean they formally denied a reconsideration request already?

That happened to me years ago, and they made up a regulation in the denial of the reconsideration request (my SMC CUE claim) That claim succeeded  anyhow.(Buffalo VARO)(won at the AO  Nehmer RO)

I certainly believe this is a valid CUE issue but could you scan and attach here, the decision that lowered his comp without an exam?

I assume they never ordered a C & P or worse yet, they did set up a C & P date, but never told him about it.

But the decision would state if he had missed a C & P exam.

The error is so egregious and the BVA decision you gave us is the only one like it I have ever seen...in 2 decades...I think maybe there is something else they erred about as well.They certainly had to give your husband time to appeal the proposed reduction and they also had to state some rationale for their decision.

Can you scan and post the evidence list as well? Cover C file, name, number prior to scanning it.

I think something else is wrong with the decision, and you might need to file more than one CUE.

"I tried the request for reconsideration route and was told no way by the VA (is there a slogan somewhere in that phrase?) and "file an NOD if you don't like it". Guess I ticked someone off. "

Did that info come from a vet rep or from the VARO itself?

 

 

 

Edited March 14, 2017 by Berta

[Gastone]

You say "Decision Letter," but wasn't it actually an RO Letter of "Intent to Reduce Rating?"

Could you post a redacted copy of the "Reduction Letter?"

What options were you given for disputing the "Intent to Reduce?"

My understanding regarding "Proposed Rating Reductions" is that if you file an Official NOD with your RO, the reduction is placed on hold till your appeal is adjudicated. Your Comp continues, in your case at the 100% level. If you eventually lose at the CAVC, you're subject to a VA Claw-back of your  Comp overpayments.

If you win the Appeal, no harm has been done to your bank account, if you lose you have to pay back the Comp difference. If you don't set up repayment arrangements, the VA will withhold however many months of future comp payments to cover the overpayment.

If you lose, you start repaying with 2021+ $$, which are worth less than 2017 $$. No brainer, File the NOD immediately, why accept the reduction without a fight.

Semper Fi

[Berta]

Something is wrong here.

I am rethinking my advice above on the CUE.

We don't have enough info.

Did an actual Proposal to Reduce letter come prior to their December 2016 decision?

The letter would have given 60 days for a response.Most vets here who have gotten those letters have requested a hearing. Any vet who gets a reduction proposal has to act fast.

We need to see their decision and the evidence list.

I am in a major snow storm and might lose internet today or tomorrow due to the weather,if the snow packs into my sat dish.

Others can help here as well.

 Something is missing here.....

 

 

 

The Proposal to reduce regulations are in this hadit link:

And in many other posts here:

 

Edited March 14, 2017 by Berta