CUE Appeal decision made; I got a phone call today

[Judy]

CUE claim has taken six years. I've had to endure three (3) BVA Appeal hearings over the past 21 months. Today I got a phone call from someone in "Litigation" she said. Informed me that my claim was decided on February 23rd and the letter would be forthcoming. This is a very old CUE case. My first BVA Appeal hearing was the Judge I'll call "S"; the case was remanded back to RO for lack of jurisdiction (by BVA) which necessitated a second hearing. BVA did not assign Judge "S" but rather Judge "R" presided. Later, I get a phone call from BVA official explaining to me that "two judges cannot make a case decision as it could possibly be a tie, and that would be NO decision, therefore, I MUST have yet a third BVA Appeal hearing with yet a third Judge. That was held (now 19 months ongoing) by Judge "P". So today I get the phone call mentioned above. Since litigation is the jurisdiction of the OGC, I wonder what (if anything) my phone call (ahead of written notification) means? Any insight from anyone? Berta? Thanks to all. Judy B.

 

[Gastone]

Any chance of posting redacted copies of your Remands? The BVA "Jurisdiction Problem" would be an interesting read. Sounds like your Appeal shouldn't  have been Certified to the BVA.

[Berta]

When the letter comes, can you scan and attach it here? (Cover C file# name prior to scanning it)

I think your BVA case and other info  is here somewhere:

https://community.hadit.com/topic/48989-should-this-be-eed-for-previously-won-dic-or-is-it-a-case-of-cue/?page=10#comment-291053

If I can find the most recent BVA remand there I will post a link to it.

Maybe the woman used "litigation" in a broad sense.It is usually used in Courts cases.

Were you ever at the US CAVC with this case?

 

 

[Buck52]

First I heard of something like this happening  when 2 judges can't make a decision because their minds think the same??? I guess another judge is called in to make a decision  but what if he sides with the other two judges? makes no sense to me.  I call it B.S.

you might check  CFR 38 3.105 (a)

I Have no answer to this?

Alex Graham (Asknod) can answer this for you.  he knows most of those BVA Judges.

Edited February 27, 2018 by Buck52

[broncovet]

It really does not matter, now, that you went to the BVA 3 times to get one decision.  The fact is you got your decision.  (So much for the "undebatable part of Cue".).  

This is almost certainly good, no great news.  Why?   Well who would want to call claimants up and tell them their claim is denied?   What are you gonna say to them, especially if they ask, "why", which most would?

However, it would be fun to tell claimants their long awaited benefits had been awarded.  They may not want to say that on the phone because there are different interpretations, and you may/may not got the effective date you want.  Then, you could say, "xx employee called you and said the benefit was granted", so you have to grant.  That would be messy and get into a pissing contest.  

Perhaps more importantly, the BVA is obviously admitting they made a mistake.   It should not take 3 trips to do what should be done in one trip, so "somebody" messed up.  

So, how does the VA "fix" mistakes?  Well by granting benefits, they dont put those responsible in jail.  

That has happened to me before.  The VA/BVA messed up, big time, and I called them on it.  I stirred up a hornets nest by filing a writ of mandamus.  

While the writ was denied, eventually, I got my benefits a few months later.  100 percent P and T.  It was, no doubt an embarrassment to VA, some here will recall.  

Its like this:   

    OK, the VA messed up, big time.  The Vet calls them on it so now the big shots know about it.  Since its documented, not just someone's word at the VA vs the Vet, they dont want that black eye.  So they give you a steak to put on the black eye in hopes you are happy, and that mostly works and its "business as ususal" at the VA.  

    Remember, that is what they want.  "Business as usual".  There are people in VA and many contractors who benefit millions of dollars.  They dont want that exposed, so they dont want too many investigations which may uncover this.  Its kind of the reverse side of a Vet applying for benefits at risk of losing those he has.  

    There are many people in the VA who benefit greatly, from the corrupt system it is now.  They sure dont want to kill the goose that lays the golden eggs, so they try to "dispose of" any thing that would threaten their exposure.  

     And, if you get mad and complain that the BVA took 3 trips..to the right people...that may launch an investigation.  Well this investigation could uncover some truths the VA does not want out at any price.  

[Berta]

I briefly went through ten pages of your other topic.

In 2012 you mentioned what appeared to be a medication error that could have caused/contributed to your husband's death.

Did you formally appeal the denial of adriamycin as contributing to death -with an IMO?

I felt you had a strong case under Section 1151.

I am familar with 1151 medication errors and my last VA  1151 award due to medication error was about 2 years ago,regarding my husband's death. They denied at first, I asked them to immediately CUE themselves (violation of 38 CFR 4.6, )and within 3 weeks they sent the proper award letter. They had failed to read my sole piece of evidence when they first denied the claim.It came from the Top Cardiologist in VACO, when they settled my FTCA case.

Improper dosages of HBP meds contraindicated by VA prescribed pseudoephedrine- prescribed for a condition I proved my husband did not even have....that in addition to the other multiple malpracticed conditions also had contributed to his death.

In the older scanned decisions,they were denied as to the contentions that the adriamycin medication contributed to your husband's cholestrol/trigyceride levels and thus caused the atherosclerosis that caused his death.

Did you re open that specific claim, exactly as it was stated in the first place , or appeal it ,with an IMO supporting those contentions?

If it is still on appeal, is  it possible the the Litigation BVA reference refers to your Section 1151 claim?

 

[Berta]

I went through other posts you have here over the years.....this one from 2012 

"The lawyer told me to CUE them on the "veteran was 100% disabled by VA for 8 years prior to his demise".....this is however NOT the way the reg reads.

 

THIS is related ONLY to the enhanced DIC amount.

 

He is quoting it as though it is the reg for obtaining SC DIC (in the original claim) without question. NOT TRUE.

 

I am receiving SC DIC (awarded under the "benefit of the doubt rule") AND I am receiving the ENHANCED DIC amount as well.

 

I, like Berta, do not understand how or why I was awarded the ENHANCED DIC if I did not MEET THE 10 year rule for the SC DIC in the first place.

 

Lawyer is indeed mistaken in telling me to file CUE using the the 8 year rule as a basis for CUE.

 

Again, this is a quote from the lawyer:"

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Then  the lawyer quoted the regulation and he was correct. I still dont understand the "enhanced" DIC award you received..

Maybe this has something to do with the letter you will get.