CUE or other recommendations requested

[Sherminater]

Hello fellow Vets!

I recognize it’s a lot to read... It’s my first time making a blog post and I want to be clear and get solid and knowledgable responses from y’all. Thanks in advance!!

History... Filed a claim for VA disability benefits April 2013. Hand delivered over 200 documents in support of my claim to the Houston VA office in January 2014 (prior to a decision letter on my claim). Decision letter received in March 2014. Failed to achieve a rating above zero percent on any of the disabilities claimed and no service connection for Major Depressive Disorder(MDD). 

The documents I filed at the VA were date stamped Jan 8, 2014 and included the only records I had in support of this claim, especially for the MDD.
 

Fast forward... Intent to File submitted in August 1, 2018 (at my attorneys direction). His office then submitted a supplemental (including 16 pages of the very same supporting documents that I submitted to the VA in 2014) on the 364th day. 
 

Well,  that supplemental got me appointments with two different C&P professionals and resulted in a combined rating of 70% (10% knee and 70% MDD) effective July 30, 2019. The same VA documents filed by me in 2014 and (fewer) mailed with the supplemental were recently reviewed at my C&P exam by the psychologist conducting the interview. He asked for my help to show him any document in my file that made it clear and unmistakable that my MDD was/is service connected. It took all of thirty seconds to search his computer with my VA records on it to locate a document from my psychiatrist and head of psychiatry at my last duty station. These are the very same documents which were in the VA’s possession prior to my initial claim attempted in 2013/2014. Meaning there is NO new or compelling evidence!

Question 1 - So why did they schedule (allow) these appointments and the case to be reopened with no new and/or relevant evidence? 

Question 2 - Why was it right (or was it) for my attorney to file a supplemental (vs. just filing for a new claim)? At least with a new claim I may have been able to receive (the 11 or so months of) backpay from the Intent to File date.

It seems the supplemental has NO benefit over just requesting to open a new claim. Or is it not allowed for veterans to file a new claim for any previously claimed ailment(s)?

Question 3 - Is it a fact that the VA made a clear and unmistakable error with regard to no service connection for MDD?

... by not reviewing those documents which were right in front of them? And if the documents prove the date they were filed, isn’t it undeniable? And if I am now rated at 70%....

Question 4 - Shouldn’t this be one of those CUE cases that should/could be potentially won for backpay to April 2013?

This is the first time they scheduled me for ANY C&P appointments for any reason ever. Yet, this is at least the third attempt at filing a VA disability claim.

 

Question 5 - What makes the VA decide for or against these C&P exam appointments?

 

 

[Berta]

Can you scan and attach here the older denial, as to their rationale for the denial , and the Evidence list, as well as the decision to award the claim ( and the evidence list they used) Cover your C file number and name prior to scanning the documents.

Question # 1 - I have no idea.

                 

Question 2 - "Why was it right (or was it) for my attorney to file a supplemental (vs. just filing for a new claim)? At least with a new claim I may have been able to receive (the 11 or so months of) backpay from the Intent to File date."  I agree.

"It seems the supplemental has NO benefit over just requesting to open a new claim. Or is it not allowed for veterans to file a new claim for any previously claimed ailment(s)?"  I think it should have been filed as  re-open but I have no idea why your attorney filed a supplemental claim....?

Question 3 -" Is it a fact that the VA made a clear and unmistakable error with regard to no service connection for MDD?"

If they had the same evidence in their possession  and particularly if they listed that evidence on the denied claim, then I would say it is a bonafide CUE- but I do not understand why they did not give you a C & P exam then.

Obviously they did have your SMRs and the C & P doctor saw the nexus on the VA PC.

Is it  possible they scheduled you for C & P exams and you never got any info on those scheduled appointments? That has happened to vets-but they (VA)would have to state that in the denial.

Question # 4  - "Shouldn’t this be one of those CUE cases that should/could be potentially won for backpay to April 2013?"

Possibly- I always tell vets who succeed in their claims, who were denied in the past for the same disability, to seek CUE in the past decision.

Question 5 -" What makes the VA decide for or against these C&P exam appointments?"

That can happen if they ask the vet for specific info and the vet never sends it in....but still- it is highly unusual not to get a C & P exam-

I have a question for you-

Why hadn't your lawyer filed a CUE , as soon as you got the award letter?

I am confused here, someone will answer- I thought a NOD had to be filed or at least a recent denial occurred,that would prompt a NOD to be filed, before a claimant could get a lawyer.

When we see the exact words of the VA on those decisions we can help more.

It certainly looks like  a good CUE to me.

But this is why veterans often need to copy and highlight their SMRs as to the nexus to their service and send them to the VA.  Otherwise the VA can just breeze over them, and that is what it appears they did in order to deny the claim years ago.

" Intent to File submitted in August 1, 2018"

"10% knee and 70% MDD) effective July 30, 2019"  ????

Did your attorney consider filing  another CUE on the recent award letter?

Something is wrong here- but we can help more when we can read their decisions.

 

Edited November 19, 2019 by Berta

[Berta]

This is from the VA, as to why some veterans do not get a C & P exam:

https://www.benefits.va.gov/COMPENSATION/docs/claimexam-faq.pdf

The second paragraph states:

"Is everyone scheduled for a VA claim exam? No, not everyone will be requested to attend a VA exam. After you have applied for disability compensation and/or pension, you may receive a phone call or a letter from VA or a VA partner asking you to come to a claim exam, also known as a C&P exam. If you have claimed benefits based upon several disabilities, you may be asked to report for one or more exams so each disability can be reviewed by an appropriate examiner. This is a routine request. You may be asked to go to a VA medical center or a VA partner to complete the claim exams. Not every application for a benefit will require an exam; it depends on what medical evidence has been included with the application."

It appears to me that they violated 38 CFR 4.6, because they definitely  did have the evidence they needed, as I understand your situation.

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

I have won many personal CUES with that regulation and have 2 more in progress. 

They had the evidence they needed, but ignored it completely.

I think you should also CUE their recent award letter ( many of my CUEs were filed on award letters) and use the Alphanumeric on the right hand side of the decision as Attention to: o the CUE as well as on the envelope you mail it in ( or on ebenefits).

As long as the Intent to file was Timely-I believe they do owe you more retro on that.

This concerns me:

"Intent to File submitted in August 1, 2018 (at my attorneys direction). His office then submitted a supplemental (including 16 pages of the very same supporting documents that I submitted to the VA in 2014) on the 364th day. "

We need to see how the decision for the "July 30, 2019" EED considered the evidence his office sent -at the last minute-

But then again, did your attorney fully comply with this:

https://www.benefits.va.gov/BENEFITS/factsheets/general/intenttofile.pdf

Somewhere at the VA web site they ( VA) defines 'One year' , but when we can see the decisions, I can look for that definition.

I worked for lawyers for many years. Part of my job as to go to the Court House everyday,unless there were no fillings to be made there. Many years before I worked there they mailed their fillings to the court house. One filling did not get to the Court in time. Whoever was supposed to take it there the same day  , never did.

They lost that case and it was a big one. After that all court house fillings had to be done in person, and with a receipt from the court.

No VA claimant should ever wait until the last minute to file Anything that has a deadline.

There are 2560 decisions at the BVA due to untimely NODS.

I guess the year means 365 days:  This is the criteria for a NOD, but I think that goes for the Letter of intent and evidence that follows it.

"The time limit for the filing of an NOD is governed by 38 C.F.R. § 20.302(a), which provides that a claimant, or his or her representative, must file an NOD with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. See also 38 U.S.C. § 7105."

https://www.va.gov/vetapp19/files6/19146220.txt

 

 

 

 

[Sherminater]

Thank you for your detailed response.  One big point and one small request.

Small Request... would you tell me about your successful CUEs please? I’d love to learn more, especially since many sites say that it is rare to win even one.

Big point (and just for your information)... you referred to the one year time frame with relation to my law firm filing a timely response to my intent to file. Since they filed a Supplemental, albeit within the year, it is not relevant. A Intent to File is to be followed up by filing a claim, not a supplemental to a claim. There is no timeframe which will allow a supplemental to have a effective start date  to the Intent to File, only up to 60 days if filed under certain circumstances.

FOR YOUR REFERENCE...

38 CFR § 3.155 - How to file a claim. 

§3.155 The following paragraphs describe the manner and methods in which a claim can be initiated and filed. The provisions of this section are applicable to all  claimsgoverned by part 3, with the exception that paragraph (b)of this section, regarding intent to file a  claim, does not apply to supplemental claims.

AND

(i) Supplemental claims. Upon receipt of a communication indicating a belief in entitlement to benefits that is submitted in wiritng or electronically on a supplemental claimform prescribed by the Secretary that is not complete as defined in § 3.160(a) of this section, the Secretary shall notify the  claimant and the claimant's representative, if any, of the information necessary to complete the application form prescribed by the Secretary. If VA receives a complete  claimwithin 60 days of notice by VA that an incomplete claim was filed, it will be considered filed as of the date of receipt of the incomplete  claim (see § 3.2501).(

Cross Reference:

Effective dates. See § 3.400.

[Sherminater]

As to Question 3 -" Is it a fact that the VA made a clear and unmistakable error with regard to no service connection for MDD?"

YOU: If they had the same evidence in their possession  and particularly if they listed that evidence on the denied claim, then I would say it is a bonafide CUE- but I do not understand why they did not give you a C & P exam then.

ME: I do not have the denial letter available now. I will get that soon and will post.
 

YOU: Obviously they did have your SMRs and the C & P doctor saw the nexus on the VA PC.

ME: Yep, the C&P doc found the needed doc with my help in a New York minute. And I believe the VA award letter that denies service connection for MDD will state no evidence considered from the docs I filed in Jan 2014. The VA date stamped each and every page, so the fact that they had them cannot be questioned. The fact that they ignored them seems clear, if there is no reference to any of those docs. It is very clear in several of those docs that my MDD is service connected. It is the reason for me being involuntary separated.
 

YOU: Is it  possible they scheduled you for C & P exams and you never got any info on those scheduled appointments? That has happened to vets-but they (VA)would have to state that in the denial

 

ME: it is very possible that they scheduled these and even possible I was notified and ignored them. A systematic response for a bad week or bad month for many with MDD. How would I verify if they did this. They did claim that I did not attend or show up for any of their attempted appointments after I filed my claim. However, I do not recall that being the case. I’d like to verify, but need guidance to do so?

[broncovet]

You did not say the date of the decision awarding benefits effective in July, 2019, but you are within the one year appeal period, since its not July 2020 yet.  

 

For that reason, my suggestion is you file a nod disputing the effective date and/or disability percentages (if you dispute those).  

Yes, you can file a cue, and it may also fly.  But, why raise the standard of review to CUE if its unnecessary while still in the appeal period.  

Berta and I have had similar discussions in the past, and, I wont deny Berta has had great results filing CUE claims.  However, I still dont see an advantage to the Veteran to deliberately "raising the bar" to the Cue standard of review where the Veteran essentially surrenders his valuable "benefit of the doubt" doctrine with CUE.  

ONE issue:  VA controls the evidence.  We dont.  We often find out what evidence the VA has in their possession in a RBA document AFTER a board decision.  Of course, then its too late to do anything about missing evidence, except to appeal a board decision, get a remand, and submit that missing evidence.  

Now, since you are represented by an attorney, Im going to assume you did due diligence in selecting your attorney, and, that attorney is competent, since you posted nothing to the contrary.  He also has read your file, while I have not.  

The laws on effective dates are complex.  I will provide a link.  

If your claim flies "as a cue" it should also fly as a "regular appeal" if filed in the appeal period, given the same facts.  The reason is if you can jump over a bar that is 8 feet tall, you can also jump over one that is 2 feet tall, that is because the cue standard of review is higher than the appeal standard of review.  

My first suggestion is to ask your attorney his thoughts on this.  You dont have to follow his advice, but I dont suggest you proceed until you at least hear it.  

If you feel the attorney is not representing you to your level of standard, then that is a different issue:  Whether or not you should terminate the attorney.  

Go ahead and file the cue if you want, but, in this senario, it would cost you money.  

Example:

You file a cue while still in the appeal period.  The VA eventually rules that it is "not" cue because the outcome is not undebatable, or, the error was not outcome determinative.  

In this example, a "regular appeal could net you additional benefits" while the Cue claim nets you zero.  This is especially true when the cue issue is not resolved until after the appeal period has expired.  

For the above reasons, I suggest you appeal the decision filing a nod and not seek a cue claim at this time.  

There is no time limit on Cue, so it can be filed later.  But there is a time limit on NOD's, so I dont suggest you let that appeal period expire.  

One caveat.  Berta has had good luck getting Cue's reversed favorably for the Veteran quickly.  I completely understand that you would rather have your retro in 2019, than in 2024.  So, if you think a cue claim could result in a quick favorable outcome, then go for it.  However, if the cue is not resolved to your satisfaction within the year appeal period, then I would go ahead and file a nod to preserve your effective date.  

Few of the rest of us, if any, have had great outcomes on Cue claim's except Berta.  Her skill level on CUE's is legendary.  

But not all of us are Tom Brady, and the rest of us, sometimes, need to play it safe.  

 

Edited November 20, 2019 by broncovet
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[Berta]

Everything I know about CUE is in our CUE forum and the fastest ones of all were filed against VARO usually in mere days after I got the erroneous decision.

But my SMC CUE took 8 years.I was hoping they would send it to the BVA, because I know the BVA would have awarded it. Then a Miracle happened- AO IHD Nehmer-and my claim for that went to three separate ROs before it even got to the Philadelphia RO Nehmer Division.

They awarded it immediately as it was contingent on my AO IHD claim which they also awarded.

You mentioned you have an attorney

Did your attorney consider filing  another CUE on the recent award letter?

I think almost all of my CUEs were on award letters. I think you should ask the lawyer to file the CUE.