CUE - Incorrect Eff Date - 100% P/T

[Ryan22]

CURRENT STATUS: 100% P/T

CLAIM SUBMITTED: 14 JAN 2015

INFORMAL CLAIM SUBMITTED: 26 NOV 2013

INFORMAL CLAIM RECIEVED LETTER DATED: 16 JAN 2014

PROOF of INCORRECT EFFECTIVE DATE IN CLAIM SUBMITTED 14 JAN 2015

1. 21-526EZ LINE 5 - Have you ever filed a claim with the VA?

Yes box checked

"Informal Claim" handwritten in box

2. 21-526EZ LINE 9

Handwritten inside box:

NOTE: Attached is copy of DUA letter dated Jan. 16, 2014 stating I had to submit this formal claim "within one year from the date of this letter" January 16, 2014. I am of the opinion that this submittal meets the requirement to use date of informal claim as the effective date of claim for this submittal.

3. 362/LM - INFORMAL CLAIM RECIEVED LETTER Dated 16 JAN 2014

Title of Letter: "IMPORTANT -- reply needed within 1 year"

Relevant Text of letter:

a. 'We received your request for VA benefits on November 27, 2013. We consider this request as an informal claim for benefits.'

b. "If your completed application is received within one year from the date of this letter, and we decide that you are entitled to VA benefits, we may be able to pay you from the date we received your informal claim."

4. VA FORM 21-4138 STATEMENT IN SUPPORT OF CLAIM

Dated: 26 NOV 2013

"INFORMAL CLAIM FOR THE FDC PROGRAM

I attend to apply for compensation benefits under the FDC Program. This statement is to preserve my effective date for entitlement to benefits. I am in the process of assembling my claim package for submission"

PROBLEM:

On 17 APRIL, 2014 I was at the mental clinic at the VA. I was homeless at the time so they sent me to a social worker. The social worker I believe had me fill out a form for an emergency pension. I'm not sure what I filled out exactly-not a very clear time of my life. In my paperwork I have, I see I received another informal claim letter reflective this date of 17 APRIL 2014.

QUESTIONS:

1. Could opening a CUE appeal impact my current 100% P/T status? If there is any chance of this I do not want to submit a CUE at all. I just want my effective date reviewed, nothing else. Is that possible or does the whole claim get reviewed?

2. Is there someone I can contact at the VA to see why they decided on the effective date I have right now? Maybe I'm missing something and I didn't follow the rules correctly. Maybe whatever I did on 17 APRIL 2014 impacted my effective date/but even then, wouldn't my effective date be 17 APRIL 2014?

3. In your opinion, do I have a case for CUE?

4. How long does the CUE process take in your best guess?

Please include any other advice or information, links that might help me.

Side note: It goes without saying, but I would like to say it anyway; thank you so much for making this forum a resource for not only myself, but for all veterans. You guys are truly helping; THANK YOU.

 

 

[Tbird]

@Ryan22 Glad you found us. Hopefully others will jump in soon with some answers for you!

[broncovet]

What was the date of your VARO decision??  If it was within a year, then you should file a NOD disputing the effective date, and not file a CUE because there would be no need to raise the standard of review to the onerous "cue" standard of review.  

Remember, Cue has to be "outcome determinative".  If the error did not affect the outcome, then its not CUE.  

As far as the effective date, its the later of the date you applied or the facts found (which is usually the date the doc said you became disabled).  

In your case, the VA "could" be alleging that your effective date is not the date you filed, as a doctor suggested you were not disabled until later.  

[Berta]

Can you scan and attach the decision here, and the Evidence,  list they used?

Cover C file # and name prior to scanning it.

"1. Could opening a CUE appeal impact my current 100% P/T status? If there is any chance of this I do not want to submit a CUE at all. I just want my effective date reviewed, nothing else. Is that possible or does the whole claim get reviewed?"

It should have nothing to do with the established rating.

"2. Is there someone I can contact at the VA to see why they decided on the effective date I have right now? Maybe I'm missing something and I didn't follow the rules correctly. Maybe whatever I did on 17 APRIL 2014 impacted my effective date/but even then, wouldn't my effective date be 17 APRIL 2014?""

 

"PROBLEM:

On 17 APRIL, 2014 I was at the mental clinic at the VA. I was homeless at the time so they sent me to a social worker. The social worker I believe had me fill out a form for an emergency pension. I'm not sure what I filled out exactly-not a very clear time of my life. In my paperwork I have, I see I received another informal claim letter reflective this date of   17 APRIL 2014."

They might have used the 'pension ' claim  date someone filled out for you in the hospital,instead of your formal SC claim.....I see that as the possible problem.

"3. In your opinion, do I have a case for CUE?"

Possibly- we need to see the decision. 

"4. How long does the CUE process take in your best guess?"

In my personal experience, mere weeks for some but  2 CUEs I filed took almost 8-9 years and they were awarded at a different VARO, as they had not been  transferred to the BVA yet.

We have had some fast CUEs here but one I helped with, that the BVA awarded,  took many years.(RSG's CUE)

One  (maybe 2) I filed via IRIS , as a complaint, went very fast.

 

 

 

[Berta]

Based on what you posted here ,if I were you I would call the White House veterans Hot Line:

 855-948-2311 

Tell them the reg they quoted and how they broke that regulation.

 

"a. 'We received your request for VA benefits on November 27, 2013. We consider this request as an informal claim for benefits.'

b. "If your completed application is received within one year from the date of this letter, and we decide that you are entitled to VA benefits, we may be able to pay you from the date we received your informal claim."

Give them the name of the VARO, your C file # etc and th alphanumeric at the right hand side of the first page of the decision, as that includes the initials of the last person at the RO who handled your claim.

Or you can go to ww.va.gov main site page, click on the Contact us thing, then click on "Ask a Question" and they will  re-direct you to the IRIS system.

File this as a complaint- you might have to play around to find the complaint box.

Tell them what you told us, the regulation they quoted in the decision but apparently did not adhere to, and give IRIS the alphanumeric info too.

I strongly suggest asking IRIS for an email reply- so they cant make something up on the phone.

This sounds like  an error ( and VA makes plenty) that they could correct very fast.

You dont need your C file for this.All you need is their decision.

I always have prepared my IRIS complaints in my Word program, to make sure they are brief but that they cover the main issue and then I pasted the word doc into the IRIS complaint area.

There definitely seems to be a major error here.

The biggest financial error VA ever made on my stuff was a CUE the Regional Counsel called on them.

(I had re opened a claim and they had to check with the RC on my FTCA  offset matter. He read my past letters and immediately order them to pay me, via his CUE.

They sent 28 thousand bucks- retro DIC ( I had been trying to get this error corrected myself for a few years  in the late 1990s and they had been ignoring my letters and without any audit I had no idea how much they owed me)

but when they sent the check and an audit statement I did simple math and realized they owed me over 11,000 more- they had forgotten an entire year iof my DIC) I sent them a brief letter attaching my handwritten calculations, the fact that they had forgot to add the specific year of DIC , and they sent me that additional amount in a few weeks.

Sometimes I think VA pulls this crap on purpose- we get an award or some retro payment that is large and they think we are so happy and relieved to get anything, that we will not question the exact way they paid the award and that is how they can snooker us.

 

[Berta]

There is no way to contact me privately.

Based on what you told us here ( without seeing the decision) I gave you the best advice I could think of.

Vets scan and attach decisions here all the time- they just redact or cover the C file, their name, address etc- prior to scanning it.

Much of the advice I give here is based on my personal experience-I have called the White House hot line and I also have filed IRIS complaints as I recommended that you do...but 

Sometimes, after we opine on a claim, without seeing the actual decision, we have to change our advice,when the veteran does post it here.

It is the exact wording of their medical rationale, rating info etc, reading the evidence list ,etc etc -of VA decisions that hold the keys to the next steps we can take.

That is particularly important when someone is considering a CUE claim and/or any attempt to challenge a EED.

 

Others will chime in .

 

 

[broncovet]

Yes, its common for VA to make mistakes that  cost US time and money.  Someone pointed out that a rater has maybe 15 minutes to read your  file, and, if you have one that is 3 0r 4 thousand pages, like mine, rest assured they wont be reading it all.  

Unfortunately, some Vets have taken advantage of Berta's services in the past, and she no longer takes personal messages.  She only has so much time to donate so, if you dont scan in the decision and accept her public advice, she does not provide it.  

I think Vets have essentially lied to Berta, claiming they deserve "x benefit" when there was no  evidence of same.    If you do not deserve VA benefits, neither Berta, nor the rest of us can "fix" that.  You have to do all the right things including rebutting any decision the VA makes in error or else they become final.  

If you apply and are denied and file a timely NOD, then the VA has to give you the benefit of the doubt.  

However, if you wait over a year and try to file a cue, the burden of proof is now yours and a cue is an onerous burden.