cue or not to cue....

[paulcolrain]

ok so ,,,, 

if you read back on some of my posts you will see the issues i was having with the va,

long short..

i was :

20bilat

20bilat

20bilat

20bilat

and 40  = 76.4 PAYS 80

NOW IM, 

40 bilat

20bilat

20bilat

20bilat

and 40. = 83.4 PAYS 80

Edited May 29, 2018 by paulcolrain

[broncovet]

If the VA "failed to reopen due to New and material evidence", then this just might be a cue BUT, I always suggest CUE as a last resort, only when all else fails.  

If "prying it open" with 3.156 b is possible, you should do so.  Here is why.  CUE only applies to finally adjuticated decisions.  If they never adjuticiated an issue, the VA has repeatedly copped out and said, "oh we are working on that one", that isnt cue.  Sure, its taken 11 years, but isnt that backlog awful?  We are sorry about that, but we think we can get to your claim if you give us another 11 years.  

You simply can not CUE a claim that is in progress (or not finally adjuticated).  The cue will be denied beause they want you to wait until the claim is done before they can decide if its in error.  You cant cry "error" if they are not even done with it yet, no matter how long it takes them.  

[paulcolrain]

2 hours ago, broncovet said:

You cant cry "error" if they are not even done with it yet, no matter how long it takes them.

i like your post...

so then how do you find out if its still open and not fully adjudicated yet? 

so this morning i call both vso's i have ( 1 in D.C. that works the appeal 2nd that works regional stuff ) and of course neither are in the office today....

then i call 1-800 to try and track down this reconsideration claim and again im told that no such claim exists and that the newly opend claim on the 16th was was decided and i only won 1 part and that it was worked in the San Deigo regional office,,,. 

so the only proof i have that this thing even existed is 3 emails:

 this on from director San Deigo on May 16:

Good afternoon Mr. Atkinson,

 The message was returned as undeliverable since the last “v” was omitted.  I see that you inquiry to the Appeals Management Center went through.  They have jurisdiction on your pending appeal at this time.

this one from his office on may 9th:

Good morning Mr. Atkinson,

 I know someone reached out to you yesterday regarding your reconsideration. I just wanted to provide you with the AMO DIR email address, so you can reach out to them directly. It is: dir.vbaamo@va.gov

and this one from my vso in D.C. who obviously saw it in his computer may 13:

 if you want to challenge the ratings from August 2017 with any hope of success the request for reconsideration must be withdrawn and a Notice of disagreement filed by August 14, 2018.    The standards for reconsideration are so high that we only know of five at the Board level in the last 30 years.  Your local service officer should have gone over this with you.

[paulcolrain]

On 5/28/2018 at 10:19 AM, Berta said:

Did he file it or do you have proof that you filed it?

i understand your question and my answer is ,,,, i was only told that this type of claim was put into effect.. in other words,,, someone in the San Diego reviewed my reasoning for an increase and decided that the original jurisdiction AMC D.C. should cue themselves. thats all i can think.  

[broncovet]

There are a few ways to find out if your claim is "open":

1.  If you submitted the claim, but it has not been adjuticated yet.  That is, you have no VARO decision.  

2.  If you did get a decision and submitted "new and material evidence", the VA is required to reopen the claim.  IF the VA decides that the applicable evidence "did not qualify" as "new" and "material" evidence, then they must issue a written decision to that effect.  If you DID submit new evidence PRIOR TO THE VARO DECISION or WITHIN A YEAR after the decision, then the VA must reopen the claim.  Yes, its true that the VA does not always follow this or other regulations.  

3.  At certain appeal stages the VA does not do a "regular" decision, but instead does a SSOC, then this qualifies.  (SSOC is Suplemental STatement of case).  An SSOC is required when the Veteran has already received the SOC, and then he submits new evidence.  

4.  Sometimes you find out a claim is pending by ordering your cfile, like I did.  Instead of an "actual written decision" as required by 38 CFR 3.103, the Va listed on my rate sheet, "not service connected".  No reasons and bases, no decision..just a note on a rate sheet that it was NSC.  This means it was denied without a decision:

http://vets101.vetsfirst.org/index.php?pg=kb.page&id=1936

Quote

2.3. Due Process

 

The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.  The Secretary shall provide notice of a decision regarding a claim for benefits and "an explanation of the procedure for obtaining review of that decision."  38 U.S.C. § 5104(a); see Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991).  "Each appellant will be accorded hearing and representation rights pursuant to the provisions of [38 U.S.C. Chapter 71] and regulations of the Secretary."  38 U.S.C. § 7105(a).  The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims.  38 C.F.R. §§ 19.25, 19.100. 

A Supplemental SOC (a "SSOC") is required when an appellant submits additional evidence to the VARO prior to the transfer of appellant's records to the BVA, 38 C.F.R. § 19.37(a), and when a BVA remand of a case to the VARO results in additional evidentiary or procedural development and continuation of the denial of benefits, 38 C.F.R. § 19.38; see generally 38 C.F.R. § 19.31 ("a period of 60 days ... will be allowed for response");

Also see this:  https://asknod.org/2016/07/08/bva-wheres-my-3-103c2-protection/

[paulcolrain]

got an update today. the person from the RO in San Diego called me today to apologies that this was dropped again... he told me that San Diego processed it for the new claim i had in system .... but that the request for an administrative reconsideration was dropped by the amc in washington and it was the 3rd time... he assured me that he will see it get done and hes asking his supervisor if because this keeps happening if they can just do it.. but assures me that he will call me at end of next week with better news. im waiting ... 

[paulcolrain]

got my update..... RO corrected there error and increased me... now on to get the correct E Date... thanks Hadit for all your Help once again... a win!!!