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CUE - Incorrect Eff Date - 100% P/T

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Ryan22

Question

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.

 

 

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On March 25, 2015, the VA changed the rules on informal claims and began demanding you file a 21-526EZ to protect a true "informal claim". However, your filing for an informal claim prior to that date would predate that regulation. As long as you filed a 21-526EZ or the older, long-form (21-526 or even a 21-527 for pension) within that golden one-year window, it would be viewed as acceptable-IF- you filed the 526 within one year of the informal submission and clearly and unequivocally stated what it  was you were filing for. I note you mention you filed another informal/formal claim in 2016. If it was accomplished on a 21-4138, it would be invalid as they quit accepting that as an informal claims document on 3/25/15. VSOs (Veterans Service Organization) didn't get that email for about a year and some still are clueless. The VBMS computer cannot "read" a 4138-especially anything handwritten. Everything must go in on the newer 526s regardless of whether it's a new claim, a claim for increase or even a CUE filing. Any disagreement likewise must be filed on the 21-0958. Remember, there is no venue for reconsideration unless your VSO catches the preliminary decision denial and asks the VA Regional Office (VARO) to correct it based on an error they see. That window is narrow-72 hours. If they do not protest, it's off to the NOD filing on a 958.

In my opinion, you have inundated them with too many informal and formal claims and they are confused as to the true status of your informal claim. In these cases they assume the worst and looked at you January 2016 filing you mentioned as a new formal or informal claim. This happens often when you use a Veterans Service Organization. They tend to turn on the fire hose and drown the VA with filings that argue with one another. This clouds the posture of the oldest informal filing and the default setting goes to the latest one.

Your rating is protected. They can never revisit the 100% decision. This is a conclusion of law that cannot be revised unless you obtained it fraudulently. I'd definitely go after the earlier effective date as a CUE filing and obtain my claims file to preserve the evidence of the 2013 informal claim before it suffers "shrinkage" or gets lost somehow. 

Best of luck.

Edited by asknod
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Exactly.  This is your "claimant friendly" non adversarial claims system where your claim on "the wrong form", even if your VSO did not get or heed the memo, is invalid.  

It "used to be" that if the claimant filed the form on the wrong form, the VA had a responsibility to send the claimant the correct form, and, if you did so, your "informal" claim would be accepted.  

Likewise, when you apply for TDIU, dont put that on a 21-4138 either.  

On another site, at least one former VA employee suggeste you could write your claim for benefits down on a paper napkin and it would be valid.  

See the following:

 

[DOC]Department of Veterans Affairs M21-1, Part III, Subpart ii

Its unclear to me if the VA must still provide notice to the Vet that he must refile on the correct form, whenever the wrong form is used.  

There is at least some chance if the VA were neglitent in sending you the correct form, you may be able to use that to get an earlier effective date.  

Certainly, the VA must still provide you with a notice of your rights to appeal, and, should the VA "admit" to never sending you that notice, you may also be able to use that to get an eed in some circumstances.  

I suggest you go through this with a fine tooth comb, as it was endorsed, apparently, by the NVLSP.   

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

While this is dated in 2011, it should apply if you applied prior t 2011, and may even be applicable today.  

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2 hours ago, broncovet said:

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.  

Not sure what “VARO” is, but I’m guessing it’s the date when the VA made their decision on my claim...

that date is 25 Jun 2016, and I received back pay back to January that year (when I  submitted my finalized claim.

 

its well beyond a year so from what I’ve read cue would be my only option, correct?

 

would cue jeopardize my 100% status? Would they revisit my entire disability claim, not just the effective date?

Thank you..

interesting... how do I find out why the va made their decision? I was homeless, got hit by a truck as a pedestrian and ended up in the hospital for several weeks, all well before I filed my claim, I’ve also been seeing the va mental health clinic for years before that as well. It’s hard to imagine they would think I wasn’t disabled until I filed my claim...

but maybe for some reason that was their conclusion. All my paperwork seemed to be in order and very clear about my effective date so I do tend to think there was something wrong that I don’t know about. 

 

 

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And to be honest, I’m so grateful for what I have, I don’t desire fighting anything. Of course, $40,000 would help me tremendously-but I have a warm place to sleep and food in my belly, and medical care/meds from the va. 

I just want to know if it was a simple mistake. If they made a decision based on something,  I will be at peace with that. 

I have no clue where to find that out.

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Ryan22

VARO, means (Veterans Admin Regional Office) commonly referred to as  R.O.

you can fill out the 3288 and sign it  send it to 

Dept of Veterans Affairs

Evidence Claims Intake Center

P.0. Box 4444

Janesville Wi, 53547

I believe that's the fastest way.

Edited by Buck52
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