FDCers-question

[Berta]

Two of my CUE claims filed last year have been sent to the Minnesota VAR0.It appears I have to file a formal claim again ,as FDC, for accrued under a CUE-

that's OK- but the packet contains the forms, a copyof my CUE claims, the denial I based the CUE on, the 5103, that shows the evidence listed on it was received and confirmed by a VSO at Buffalo VARO,

and a copy of OGC Pres Op # 08-97 that completely supports my CUE claims. 

Do I understand that I have to send in copies of all of my evidence again?

This is where the CUE lies on their last decision:

"please notethat although after the initial 6 month period the cerebrovascular accident under 1151 became two separate disabilities, this did not create a change in evaluation for payment opuposes, as the combinded rating for accrued  purposes remained 100%, and entitlement to accrued benefits for pecial monthy cnpenation based on scheduar housebound criteria went unchanged.

Therefore, no additional accrued payment is owed."

OGC Prs Op states otherwise, as "congressional intent."

All of the evidence they verified in 2015 they had ,my phone ( I made the VSO read it back to me, so he could not just say yes we got this and that)- proved that my huband was 100% P & T at  death by the stroke, yet the Buffalo director called me twice to get me to believe his stroke was not Permanent- and I guess this is why they stated as above that 'no additional accrued payment is owed. And of course they never have mentioned the OGC Pres op.

And when I asked her what miraculous Cure the VA performed to render his stroke not permanent-in spite of all th evidence they had, that it was, she did not reply to that and said the claim was "Over."

Can you imagine them doing that to a widow of a 100% SC vet , whose death cert or in my  case autopsy as well, states their 100% disability , under 1151 or direct SC ,contributed to or caused their death?   Because the RO can say he was Total but not permanent for the disability when he died? In spite of evidence from VA, and numerous other entities, in my case, that he was in fact P & T?

38 CFR 3.340 (b) clearly states  my point.

 

When they get the accrued form do they then get the whole record from my VARO?

I can certainly copy and send it all in again or use ebenefits-  

 

 

 

 

 

[Berta]

When the BVA makes a legal statement , citing a specific regulation, the regulation can be used as evidence in a claim regarding the same specific issue.

My RO refused to refund my FTCA offset when I won under direct SC death.

I had used as evidence a prior BVA decision I received,( I had won that claim at the RO level, and they(BVA) rendered the appeal as moot.I didnt know I should have withdrawn the appeal.)

In their decision however they stated to the affect that if the widow ever succeeds on a direct SC death basis, the FTCA offset would have to be refunded.And added a citation on that. 

My RO refused to refund the offset, I called the OCG, and 

The OGC ordered them to pay me.

I used this legal statement in my CUE:

"Entitlement to a permanent and total disability rating for PTSD with depressive disorder not otherwise specified
Entitlement to a permanent total disability rating requires a Veteran’s disability to be both permanent and total. 38 C.F.R. § 3.340. Pursuant to VA regulations, a total disability may be established in two ways. First, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  Second, a total disability may also be assigned where a Veteran’s service-connected disabilities 
are rated 100 percent disabling under the rating schedule. 38 C.F.R. § 3.340(a)(2). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 3.340(b). Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling     when the probability of permanent improvement under treatment is remote. Id. The age of the disabled person may be considered in determining permanence. Id.  "

https://www.va.gov/vetapp18/files6/18107434.txt

And a copy of that regulation,in addition to th considerable medical evidence of 100% P & T ,1151 CVA.

Maybe that will help someone.

Edited June 1, 2019 by Berta

[Berta]

sorry for typos, had to type fast , I am losing internet access due to weather...