Could this be Cue from BVA decision

[XVIIIAIRBORNE]

I recently received a BVA decision granting an earlier effective date on TDIU.  However, the BVA mistakenly used the date OPM notified me of my disability retirement and not the actual or effective date of my disability retirement.  The Administrative Judge in his decision granted an earlier effective date of TDIU the date of my disability retirement from the USPS.  So, my question is could this be considered a CUE?

[vern2]

Sounds like a failure to communicate. IMHO, this is a CUE.

[pwrslm]

If there is an obvious issue with the decision, you may be able to clear it up by submitting a reconsideration for the date.

[broncovet]

Dont file a CUE at this point, file a NOA, instead.  Get an attorney, this is the BEST TIME TO DO THIS..just after a bVA decision.  Tell your attorney what you told me.  Your attorney fees will likely be 0, because EAJA will likely pay your fees.  

Filing a Cue "raises the standard of review to CUE" unnecessarily so at this point, assuming the BVA decision was recent and your attorney can file a timely NOA to the CAVC.  

Dont delay:  Seek an attorney today.  Send several attorneys a copy of your board decision, and explain why you think the effective date is wrong.  

I suggest you send a copy of your board decision to at least 3 attorneys:

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[FormerMember]

If the decision is less that 120 days old, you can take it to the CAVC but I would not. I think asking for a Motion For Reconsideration at the BVA would be a good alternative but it is a time alligator waiting for the Board President to make that call. 

But let us analyze. Entitlement to a benefit is due and payable at the earliest time it is ascertainable your entitlement arose. If the TDIU began the day after your physical last day on the job, then there is no CUE or error. You cannot collect TDIU and be working for the USPS at the same time. You might get away with it in a family-owned (read sheltered) employment scenario but never the USPS. However, if they used the date that the USPS OPM notified you and it was earlier than the last day of work, where, pray tell is the CUE? Again, you cannot collect TDIU if you are still working. I guess I do not understand why any employer would "announce" any day other than the physical day you retired for your official disability retirement date- especially after you've already retired. 

Conversely, if they (VA) began paying you before you retired, you are required to notify them of the error but not by using a MFR as the vehicle. You do that at the AOJ level. Keep in mind also that VA begins paying you for an entitlement in the month following the date entitlement arises. Thus, there is always one "death" check in the chute when you kick.

The smartest thing is to just call up the BVA on the 800 923-8387 and ask them to issue an addendum decision correcting any date errors. This is the new VA. They are interested in husbanding scarce judicial resources and will usually accommodate you. It's a win-win for both of you and telling them you're headed to the CAVC would make them jump. 

Edited October 6, 2018 by asknod

[Berta]

Yes, Indeed, it is a New VA when it comes to the BVA.

I would think, since your RO will implement this decision, that you could CUE the RO decision right away, if the date is incorrect.

I would wait for the RO decision if I were you.

Did the USPS advise you to file for SSDI? That is the case for VA  FERS workers who are found too disabled to continue their VA employment. The SSDI date is usually the date the VA will use- if they aware of the SSDI award- and if it is solely for the TDIU SC (s).

[broncovet]

I humbly disagree with Alex here.  Hiring an attorney is in your best interest ESPECIALLY AFTER A BVA DECISION, since attorney fees will likely be paid by EAJA, since EAJA often awards them to Vets who win, or even win a remand at the CAVC.  

Let the attorney decide whether to file a motion for reconsideration or a notice of appeal.  He will have a dog in the fight, too.  

My advice is always the same after a BVA decision:  

HIRE AN ATTORNEY.  

Let the attorney decide whether to file a motion for reconsideration in your case, a NOA to the CAVC, File a CUE, File a Writ, etc., etc.,  

There is little incentive to do this yourself.   Even if you were "up to speed" with an attorney, and has his knowledge and expertise, the attorney STILL has the advantage over you because:

1.  He has access to your file via VBMS and this can be critical to know what is in your file.  You dont know, otherwise, if/how much of your evidence VARO has decided to delete from your file.  A Pro se claimant does not have this access, unfortunately, and is disadvantaged.   

2.  Your claim has "instant credibility" because attorneys dont like to work for free, and only accept cases they think they can win. (or at least get a remand).  This is especially true if your attorney is a powerhouse like CCK or Carpenter chartered.  

3.   Judges, who are virtually always former attorney's, LIKE IT when they dont have to deal with mistakes that pro se claimants often make.  Judges relate to attorneys because they were an attorney.  These mistakes pro se claimants make, MAY be fatal to your claims outcome.  The attorney knows he can be sued if he makes mistakes that cost you money in some circumstances.  If you are pro se, you can not sue yourself for your own errors.  

4.   There is little/no "downside risk" to hiring an attorney. 

5.  Even if you had your cfile (current), plus access to the legal search engines, such as Lexus Nexus, and were smart and experienced, hiring an attorney is still a good idea because you are often too emotionally involved in your own case to make good choices on it.  The judge will likely not make an "emotioanal" decsion, but rather one that conforms to present legal precedence.  

 

Edited October 8, 2018 by broncovet