Questions for Elders ...one at a time... 2nd - VA Admitted CUE

[J McB]

Note: My claim(s) are under Legacy Appeals

I received a Rating Decision where the VA acknowledges CUE, though I didn't claim CUE, but the decision admits CUE...

I did write in my NOD supporting statement, "NYCRO committed unmistakable egregious errors when they closed my 2016 claims," but nothing about claiming 'Clear and Unmistakable Error(s)'.

So then, I'm feeling like this CUE claim by the VA is some...thing they've done to put a halt on that component of my claim...which is retroactive for TDIU...

In my SOC appeal I took the route of "I dunno" lay person filing appeal and posed the question under footnote noting something along the lines that 38CFR doesn't say (or least I couldn't find anything) about a CUE itself being a CUE...

Questions,

1. I didn't claim CUE but the VA did, how do I respond accordingly? 

2. Are they trying to put the kabash/narrow my options for their not processing TDIU retroactive?

 

[GeekySquid]

On 9/17/2019 at 6:07 PM, J McB said:

Questions,

1. I didn't claim CUE but the VA did, how do I respond accordingly? 

2. Are they trying to put the kabash/narrow my options for their not processing TDIU retroactive?

without reading the docs it is impossible to know. redact PII and post them to get the best possible answers.

[Berta]

The VA might have cued your past denial if it was for the same condition you have now., for the proper retro-

It just makes sense.

https://community.hadit.com/topic/53608-aoherbicide-2010-bbe-arrived-need-advice/page/6/#comment-318359

I got so tired of getting CUEs in decisions....(and won them all-) that I sent former Sec Shulkin a suggestion on two aspects of VA case law and he changed them both-I gave considerable legal evidence from my own claims to support my request to him.

the link above describes one of them.

It is in M21-1 and I  posted that new CUE at the VA level  regulation and will try to find it here.

The other suggestion altered the Reconsideration regulations.

I wrote to him on how unfair it was  for a NOD deadline to stop a reconsideration request.

I had a situation I described to him with my C file # as to how the VA sat on a reconsideration request , on a CUE denial until I filed a NOD at the last minute. The claim and NOD then sat at my RO for 8 years.I knew I would win at the BVA, but then Nehmer happened.

My CUE ( actually there were two CUEs  this involved) were contingent on a proper AO IHD death award, Besides they were filed in 2003-2004, years prior to my 2010 AO IHD claim.

Nehmer awarded them both in mere weeks.And awarded my AO IHD claim.

It took mere weeks because I had to file CUE on their initial  Nehmer AO IHD denial, which called attention to the AO IHD claim.

Those new reconsideration regulations of 2018 are here too under a search.

I dropped a dime recently with the IG on another matter, on this RO, 

( I filed a formal complaint  over something else ) but I added the info as to 

  the original AO IHD denial I had to CUE. It got it resolved very fast but I questioned to the VA IG, how many other widows got an outrageously  stupid denial like that and never appealed it-or some vet rep told them they had to accept it.

I would just sit tight if I were you until the results of their CUE on themselves are finished.

 

Those Reconsideration regs were changed too, in 2018.

I am a squeaky wheel.

If Sec Wilkie approves my suggestion to him ( with medical evidence,) on HBP, and it's nexus to AO ,that will mean a new regulation as well. And thousands of claims.

 

 

 

 

 

 

Edited September 19, 2019 by Berta

[broncovet]

There is a significant difference between admitting "error" and 
"CUE".  CUE is a specific type of error, and not all errors are CUE.  Therefore:

1.  If you disagree with the outcome of what VA determined in the new  decision, including your handling of CUE, then you can file a nod, OR, you can request a revision of decision based on CUE (of the new decision). 

2.  If you dispute the effective date of your new decision, you can file a nod if its within a year, or you can file a cue.  Your choice.  

     I would not be suprised if VA was "trying to weasel out" of paying you retro pay.  It would not be the first time.  You have some options:

1.  Do nothing.  Not recommended.  

2.  File a NOD, either on your own, or with a lawyer.  

3.  File a CUE, either on your own or with a lawyer.  

     If the retro potential is significant, and you lack skills to represent yourself, then it sounds like a great time to lawyer up.  At a minumum, you can take your documents to a lawyer and ask him.  See a NOVA lawyer.    I have taken my own advice, and been represented by a lawyer and won benefits at least twice.  

    EAJA has paid my lawyer fees each time, except for about 1000 dollars.  (That was because the lawyer represented me also at the BVA, and EAJA pays fees at the CAVC level only).   I have personally benefited thousands of dollars because I turned my claims over to attorneys.