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Was Remand Followed?


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Good Evening,

I've been absent for awhile, but I finally had my BVA Hearing back in December and was told it would take roughly a year to complete.

My original post is here:

From what I can gather, they're telling me that I need to file a CUE for some of my Claims. For other parts, they are being remanded. 

I will post the Decision here tomorrow.

I'm attaching copies of my current Notes on my case along with:

   Left Knee outline

   Back outline

   2006 C&P Exam

I copied my 2005 BVA Remand into my Notes. I can't see where the Remand Instructions where followed in my 2006 C&P Exam.

I've adding the Outlines so you can see that pertinent SMR's as well as IMO's were ignored.

 

Berta - As you've advised me concerning this in the past, I know I have grounds for CUE. However, I don't want to leave anything out. And ensure I have an Air-Tight Case.

BTW, You're still schooling me in your other Post as I've learned a lot concerning CUE's.

Billy

 

 

 

20060403 VA C&P Exam Results-Spine & Left Knee - Redacted.docx Left Knee Outline.doc Back Outline.doc 2008 BVA Decision Errors.docx

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  • HadIt.com Elder

In the past 6 years since the older posts you made here  I have won more CUEs, and others here have too.

My favorite regulation that the VA LOVES to violate is 38 CFR 4.6- I could have used it in every bogus denial I ever got---

so that is something to consider- as Duty to Assist cannot be CUED.

However a strong CUE can garner Benefit of Doubt to kick in.

And don't forget folks, you can file CUE on award letters as well as denials.

 

 

 

 

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Berta posted, 

Quote

However a strong CUE can garner Benefit of Doubt to kick in.

I both agree in part, and disagree in part,  with this statement.  CUE regulations specifically are held to the "undebatable" standard of review, while the "benefit of the doubt" standard of review is much lower.  

These "standards of review" conflict with each other.  On one hand, a case that met the "undebatable" standard of review would also meet the "benefit of the doubt" standard of review.  However, the obverse is not true..if the claimant met the "benefit of the doubt" standard of review, he would not necessarily also meet the "undebatable" standard of review.  Undebatable is simply a higher bar to jump over.  If you can jump over the high bar, you can also jump over the lower bar, but if you jump over the low bar, does not mean you can also jump over the high bar.  

I do recall reading a case where a judge said "divided up" standards of review in the same case.  Me thinks it was a reopening case.  

 

I think this was the case that started the change from "new and material" to "new and relevant" evidence.  

Material evidence suggests the evidence is outcome determinative.  This tended to put a reopen due to 38 cfr 3.156 in a "undebatable" standard of review.  

This is not what the regulation intended..to hold the Veteran to the Cue standard of review with 38 cfr 3.156.  

So, it was changed to "new and relevant" evidence.  "Relevant" is a lower standard than material.   

Specifically with "relevant" evidence, the Veteran is allowed to reopen with "relevant" evidence, and then submit additional corroborating evidence..after the fact..and still qualify for 38cfr 3.156.  

Prior to that, it seems they required the new evidence be "material" and outcome determinative all on its own.  

Now that the newer regulations state "relevant" instead of material, it may boil down to when the cue happened..was it before the wording in the regulation was changed to relevant?  

However, the Veteran, with a law change, SHOULD get the benefit of the doubt, and should get the choice of the more favorable regulation.  

In the event of a regulatory change, the Veteran should get the most favorable regulation applied on a pending claim.  Its not the Veterans fault it takes the VA so long to process his application that congress changes regulations in the interim.  

However, if regulations are "liberalized" (made more favorable to the Veteran), then the Veteran should be able to benefit with the easier criteria on the liberalized regulations.  

The NVLSP, in a blurb of "common effective date errors"  repeated by MOPH, pointed out that, when regulations are liberalized, the Veteran should get the more favorable of the 2 regulations.  Unfortunately, this NVLSP/MOPH blurb was taken down when MOPH shut down.  Im not sure if its repeated in the VBM or not.  

The courts are not allowing VA to hold Veterans to the Cue standard of review when the VA loses the Veterans service records then finds them.  Its not the Veterans fault the VA loses his service records then denies the Veteran as there was no "in service event" documented.  

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  • HadIt.com Elder

The 2018-2019 VBM has considerable info on CUE and 3.156 but I guess I view liberalizing regulations as different from changes as to how disabilities are rated.But I agree the veteran should benefit from the most beneficial regulation.

Is this the 2005 remand?

https://www.va.gov/vetapp08/files5/0843700.txt

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  • HadIt.com Elder

Under your Docket # in past thread I only found this case.

It is not what I would technically call a remand:

"ORDER Service connection for a left knee disorder is denied.

A compensable disability rating for a low back disability is denied for the period from November 13, 1995 to June 23, 2002.

A disability rating of 10 percent for a low back disability is granted for the period from June 24, 2002 to April 2, 2006, subject to the law and regulations governing the payment of VA monetary benefits.

A disability rating of 20 percent for a low back disability is granted as of April 3, 2006, subject to the law and regulations governing the payment of VA monetary benefits.

https://www.va.gov/vetapp08/files3/0823887.txt

This is an order to pay you comp on the 2 issues you succeeded in.

Did you file  Timely NOA with the US CAVC for the denied issues?

In the older posts I questioned whether your IMOs fit into the IMO criteria here at hadit......

also there appeared to be a valid issue of whether the VA had ignored probative evidence in your SMRs and something else-maybe in 2006  I asked if your VSO had attempted to correct that with a CUE. 

Then I think you were granted "0" for the left knee, did you file a NOD on that rating?

I think, since you have had a  BVA hearing in December , those results hopefully will come to you by the end of this year- not sure----and then ,based on the decision you might be able to file CUE.

Carlie also I think had input into your posts- Carlie was working on her CUE when she died. She was very good at posting CUE decisions from the BVA here-and hoped to succeed in the one she was preparing- we miss her very much.

In the prior posts you said:

whatt did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?"
 
 
Is my statement concerning the Tinnitus being a CUE, correct?"
 
I explained the BVA lingo but I dont know if you ever claimed Tinnitus.
There were what appeared to have been errors in the older posts that should have been corrected ASAP such as inappropriate C & P exam results. We need to correct any bogus crap right away in VA exams or decisions, otherwise they will follow us ad finitum.
I assume your BVA hearing is for a higher than rating of "0" for the left knee....You have time until you get the BVA results to research the CUE forum.
I suggest also reading any of the CUE claims there denied or awarded.
And I also suggest maybe you should purchase the VBM by NVLSP.
 
Most of my CUEs were short and sweet ( well not so sweet) but only one one page, with exhibits enclosed and identified on the first page, that fully supported the CUE.
They need to simplify the issues.
And when the BVA decision comes, it could possibly  open the door to a fairly easy CUE.
If BVA commits CUE , a Motion under CUE has to be filed ( explained on back of th I-9 form.)
If  RO commits CUE it has to be filed against the VARO that committed the CUE.
I have two CUE claims pending against 2 different ROs, but if they do a proper audit, I might not need to even file another CUE .
The AO Nehmer RO provided an "estimated 'payment" to my AOJ. ( AO IHD award)My AOJ RO never questioned the "estimated " amount. I had 3 other financial errors in the past 2 decades that, once corrected ,involved additional 98,000 plus to me.However those audits were corrected by RC and General Counsel.. because my letters to my RO on the errors were ignored so this one I asked the OIG to correct , as well as the two directors of the two ROs involved.Got a RO letter that indicates they appear to be doing that.
 
The CUEs I had prepared were more involved than CUEs should be ,because of another situation, that is also being rectified. Otherwise they could have been simplified.
 
 
 
 
 

 

 

 

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