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CUE - The fun of just getting them to accept the CUE


kanewnut
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Question

I wrote the below letter to Senator Warner. I had answered a survey he had put out and he wanted to know what problem I had with the Va. This morning I got a call from QTC to schedule a C&P exam. Isn't it a bit unusual to schedule a C&P for a CUE? This whole s**t is getting hilarious! 

This M21-1 stuff deals with when not to schedule examinations  - my disabilities are static, they are permanent and I am over 55. 

M21-1, Part III, Subpart iv, Chapter 3, Section B - Scheduling Examinations 


III.iv.3.B.2.d.  When Not to Schedule Review Examinations
Do not establish a future examination control in cases when
the disability is static, without material improvement over five years
the disability is permanent in character and of such nature that there is no likelihood of improvement
the Veteran is over 55 years of age (except under unusual circumstances or where required by regulation)
the evaluation is the prescribed schedular minimum within its DC
the evaluation is 10 percent or less, or
the combined evaluation would not change even if the reexamination resulted in a reduced evaluation for one or more disabilities.
Important: 
When deciding if a disability is static or not, only order a future examination if there is objective evidence stating clearly a disability is likely to improve.
The principles expressed in this block apply equally to (1) initial routine future examinations and (2) reexaminations requested in the interest of substantiating sustained improvement.  Therefore, where one or more of the above criteria are applicable, and the evidentiary record includes a single examination report (or alternative form of medical evidence) portraying improvement in a disability that has persisted at its assigned level of evaluation for five years or longer, do not proceed with scheduling an additional reexamination unless doing so is
required by regulation, or
warranted in light of unusual circumstances, such as in cases of Veterans over age 55.
References:  For more information on
when not to schedule reexaminations, see 38 CFR 3.327(b), and
considering a Veteran’s age in connection with review examinations, see M21-1, Part III, Subpart iv, 3.B.2.e.

The letter to my senator - 

The Honorable Mark R. Warner

110 Kirk Avenue SW
Roanoke, VA 24011


Dear Senator Warner:


I am writing to you about problems that I continue to have with the Department of Veterans Affairs, particularly the Veterans Benefit Centers. l have listed the problems below.


1. What is the correct VA Form to use to file a CUE(CLEAR AND UNMISTAKEABLE ERROR)? I have asked this because I sent a CUE to the VA - CLAIMS INTAKE
CENTER PO BOX 4444. JANESVILLE, WI 53547-4444 back on 20 August 2019. l have included that correspondence. When I called the VA at 1-800-827-1000 after several
weeks to see what the status was I was told that my CUE letter was treated as correspondence. 1 have made multiple calls to the White House Hotline(1-855-948-2311). I have gotten a different answer nearly every time that I call. One of the answers that I got is when I received a call from Caleb at the Roanoke VA. He was returning my call to the White House Hotline about what form had to be used to 38 CFR 3.1010 deals with substitution after death of Veteran. Definitely not what I asked about.
This is copied directly out of the M21-1 - l||.ii.2.B.1.c. - Situations Not Requiring a Prescribed Form
A prescribed claim form is not required for review based on clear and unmistakable error (CUE).


When I called the White House Hotline back about this answer I spoke with Anita and was told to use VA Form VA-4597b which deals with a BVA(Board of Veterans Appeals) decision. Definitely not what I asked about. I have written multiple IRIS questions about the correct form and where in 38 CFR it is written. I always ask for an email reply so I will have it in black and white. I have not gotten an answer. I think they are just ignoring me now. I refiled my CUE using VA FORM 20-0996 and also on VA FORM 21 -526EZ on 2 December 2019. I have included a copy of the forms I used. I used both forms because I could not get an answer about what form to use to file a CUE. I received a letter dated December 13, 2019 from the VA stating that my claim had been received. I have included a copy of that letter. I received a reply dated December 23, 2019 from VA stating the VA FORM 20-0996 was the wrong form to use. l have included a copy of that 12 February 2020 letter. I received another letter dated January 7, 2020 from VA telling me to file using VA FORM 20-0995 and VA FORM 21-8940. That letter is included. I filed the VA FORM 20-0995 and VA FORM 21-8940 as instructed by VA. I have included a complete copy of what I filed on 16 January 2020. At this point I have no idea what they are doing with my CUE or exactly what they are doing period.
If the VA’s M21-1 adjudication manual says no form is necessary why would the VA treat a CUE as correspondence? Why do veterans get multiple different answers every time they ask what form to use to file CUE or sent in a form for CUE?


2. The VA is ignoring the law and it’s own M21 -1 adjudication manual. I was found to be totally disabled by the Social Security Administration based solely on my service connected disabilities in June 2005. Now going on fifteen years the VA has ignored the law. The VA is ignoring the fact that the Vocational Rehabilitation and Employment Division has found me unable to work and that my service connected disabilities are permanent in nature. What can you do when the VA doesn’t follow its own M21 -1 adjudication manual and ignores the laws as written by Congress?


3. The Roanoke VA closed out a decision that was not one year old when they did it. This is from the June 29, 2009 decision -
“You were previously denied service connection for Individual Unemployability. You were notified of the decision on July 22, 2009. The appeal period for that decision has expired and the decision is now final.”
The date for the July 22, 2008 decision to be closed should be July 21, 2009. This is three weeks into the future. I Have enclosed a copy of this letter. Every decision that I have received from the VA states that - “You have one year from the date of this letter to appeal the decision”. I seem to remember you putting out some information about the Roanoke VA doing this back when it was discovered. I don’t remember now why I didn’t contact you then. I might have been feeling too bad or I might just have been so beaten down by the VA I just didn’t care at the time. I have been working on a CUE for this but as you can see I don’t know what form to file it on.


4. The Roanoke VA sent a decision July 30, 2008 to an old address in North Carolina that I had not lived at for over three years. They had been using the correct address for the prior three years. How do they suddenly decide to go into the records and use an old address instead of the correct one they had been using for the past three years? I have included a copy of this letter from the Roanoke VA.


5. I applied for a rating for my neck on 27 January 2000. I have included a copy of that form. It was denied in a letter dated March 13, 2000 because the VA said there wasn’t any record of an injury to my neck in my STR’s(Service Treatment Records). I have included a copy of that letter. So I made a copy of a page of my STR’s and sent it in on 31 January 2000. I have included a copy of that. I was later rated with SC(Service Connected) for my neck in a Rating Decision dated 29 January 2001 that I have included a copy of. I don’t think the VA is following the law when they don’t give you a SC rating when you ETS and the problem is documented in your STR’s.


6. In 1985 when I left the Army I applied for disability for my back. The term chronic is used 37 times in my STR’s about my back. I was on a very limiting profile from 4 November 1984 until I ETSed in August 1985. I worked one day in tobacco that fall when I was home on terminal leave and it nearly killed me. I went to our family doctor and got some muscle relaxers. Yet the VA rated my back as a zero percent disability. I would think that anyone that comes home after four years of service and can’t do what they regularly did before their service has a severe disability.


7. I also applied for disability for my neck in 1985. The term chronic is used 16 times in my STR’s about my neck. I have since had an MRI and found out that I had a partially crushed T-3, probably in the swimming accident back in August 1982. With all the pain and trouble I had with my neck while in service and the VA stating in 2000 that I didn’t have a neck injury documented in my STR’s I have to wonder if they ever looked into my STR’s for a neck injury before I sent them a copy of my own STR’s.


8. I have included a copy of a couple of pages of a transcript from a September 19, 2000 hearing I had with the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina with Paul Caudill presiding as Hearing Officer and Mr. Sims of the NCDVA representing me. I was lied to by both men. I was told that the hearing I just had in front of a Regional Office Hearing Officer was the same as a Board of Veterans Appeals hearing in front of a BVA Veterans Law Judge. What can be done about this now? Probably nothing. It just seems to be a constant theme throughout my dealing with the VA that I am lied to, mail sent to a years old address, CUE’s treated as correspondence, STR’s never reviewed and it is just as bad dealing with the health care side of things. A favorable outcome for these issues would be that the VA cleans up its act. The VA tells me where in 38 CFR it is written what form to use to file a CUE. The VA would then accept the CUE on that form or no form at all if that is how it should be. Your office could help me with how to get the VA to follow the law. Do I sent every thing directly to the VA Secretary? Send your office a copy of everything I file? File a writ of mandamus? I would love to have an explanation of why the VA doesn’t follow its own M21-1 adjudication manual or the laws as passed by congress.


I greatly appreciate any help you would be able to give me with these matters.

Sincerely,

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1 hour ago, kanewnut said:

I wrote the below letter to Senator Warner. I had answered a survey he had put out and he wanted to know what problem I had with the Va. This morning I got a call from QTC to schedule a C&P exam. Isn't it a bit unusual to schedule a C&P for a CUE? This whole s**t is getting hilarious! 

This M21-1 stuff deals with when not to schedule examinations  - my disabilities are static, they are permanent and I am over 55. 

M21-1, Part III, Subpart iv, Chapter 3, Section B - Scheduling Examinations 


III.iv.3.B.2.d.  When Not to Schedule Review Examinations
Do not establish a future examination control in cases when
the disability is static, without material improvement over five years
the disability is permanent in character and of such nature that there is no likelihood of improvement
the Veteran is over 55 years of age (except under unusual circumstances or where required by regulation)
the evaluation is the prescribed schedular minimum within its DC
the evaluation is 10 percent or less, or
the combined evaluation would not change even if the reexamination resulted in a reduced evaluation for one or more disabilities.
Important: 
When deciding if a disability is static or not, only order a future examination if there is objective evidence stating clearly a disability is likely to improve.
The principles expressed in this block apply equally to (1) initial routine future examinations and (2) reexaminations requested in the interest of substantiating sustained improvement.  Therefore, where one or more of the above criteria are applicable, and the evidentiary record includes a single examination report (or alternative form of medical evidence) portraying improvement in a disability that has persisted at its assigned level of evaluation for five years or longer, do not proceed with scheduling an additional reexamination unless doing so is
required by regulation, or
warranted in light of unusual circumstances, such as in cases of Veterans over age 55.
References:  For more information on
when not to schedule reexaminations, see 38 CFR 3.327(b), and
considering a Veteran’s age in connection with review examinations, see M21-1, Part III, Subpart iv, 3.B.2.e.

The letter to my senator - 

The Honorable Mark R. Warner

110 Kirk Avenue SW
Roanoke, VA 24011


Dear Senator Warner:


I am writing to you about problems that I continue to have with the Department of Veterans Affairs, particularly the Veterans Benefit Centers. l have listed the problems below.


1. What is the correct VA Form to use to file a CUE(CLEAR AND UNMISTAKEABLE ERROR)? I have asked this because I sent a CUE to the VA - CLAIMS INTAKE
CENTER PO BOX 4444. JANESVILLE, WI 53547-4444 back on 20 August 2019. l have included that correspondence. When I called the VA at 1-800-827-1000 after several
weeks to see what the status was I was told that my CUE letter was treated as correspondence. 1 have made multiple calls to the White House Hotline(1-855-948-2311). I have gotten a different answer nearly every time that I call. One of the answers that I got is when I received a call from Caleb at the Roanoke VA. He was returning my call to the White House Hotline about what form had to be used to 38 CFR 3.1010 deals with substitution after death of Veteran. Definitely not what I asked about.
This is copied directly out of the M21-1 - l||.ii.2.B.1.c. - Situations Not Requiring a Prescribed Form
A prescribed claim form is not required for review based on clear and unmistakable error (CUE).


When I called the White House Hotline back about this answer I spoke with Anita and was told to use VA Form VA-4597b which deals with a BVA(Board of Veterans Appeals) decision. Definitely not what I asked about. I have written multiple IRIS questions about the correct form and where in 38 CFR it is written. I always ask for an email reply so I will have it in black and white. I have not gotten an answer. I think they are just ignoring me now. I refiled my CUE using VA FORM 20-0996 and also on VA FORM 21 -526EZ on 2 December 2019. I have included a copy of the forms I used. I used both forms because I could not get an answer about what form to use to file a CUE. I received a letter dated December 13, 2019 from the VA stating that my claim had been received. I have included a copy of that letter. I received a reply dated December 23, 2019 from VA stating the VA FORM 20-0996 was the wrong form to use. l have included a copy of that 12 February 2020 letter. I received another letter dated January 7, 2020 from VA telling me to file using VA FORM 20-0995 and VA FORM 21-8940. That letter is included. I filed the VA FORM 20-0995 and VA FORM 21-8940 as instructed by VA. I have included a complete copy of what I filed on 16 January 2020. At this point I have no idea what they are doing with my CUE or exactly what they are doing period.
If the VA’s M21-1 adjudication manual says no form is necessary why would the VA treat a CUE as correspondence? Why do veterans get multiple different answers every time they ask what form to use to file CUE or sent in a form for CUE?


2. The VA is ignoring the law and it’s own M21 -1 adjudication manual. I was found to be totally disabled by the Social Security Administration based solely on my service connected disabilities in June 2005. Now going on fifteen years the VA has ignored the law. The VA is ignoring the fact that the Vocational Rehabilitation and Employment Division has found me unable to work and that my service connected disabilities are permanent in nature. What can you do when the VA doesn’t follow its own M21 -1 adjudication manual and ignores the laws as written by Congress?


3. The Roanoke VA closed out a decision that was not one year old when they did it. This is from the June 29, 2009 decision -
“You were previously denied service connection for Individual Unemployability. You were notified of the decision on July 22, 2009. The appeal period for that decision has expired and the decision is now final.”
The date for the July 22, 2008 decision to be closed should be July 21, 2009. This is three weeks into the future. I Have enclosed a copy of this letter. Every decision that I have received from the VA states that - “You have one year from the date of this letter to appeal the decision”. I seem to remember you putting out some information about the Roanoke VA doing this back when it was discovered. I don’t remember now why I didn’t contact you then. I might have been feeling too bad or I might just have been so beaten down by the VA I just didn’t care at the time. I have been working on a CUE for this but as you can see I don’t know what form to file it on.


4. The Roanoke VA sent a decision July 30, 2008 to an old address in North Carolina that I had not lived at for over three years. They had been using the correct address for the prior three years. How do they suddenly decide to go into the records and use an old address instead of the correct one they had been using for the past three years? I have included a copy of this letter from the Roanoke VA.


5. I applied for a rating for my neck on 27 January 2000. I have included a copy of that form. It was denied in a letter dated March 13, 2000 because the VA said there wasn’t any record of an injury to my neck in my STR’s(Service Treatment Records). I have included a copy of that letter. So I made a copy of a page of my STR’s and sent it in on 31 January 2000. I have included a copy of that. I was later rated with SC(Service Connected) for my neck in a Rating Decision dated 29 January 2001 that I have included a copy of. I don’t think the VA is following the law when they don’t give you a SC rating when you ETS and the problem is documented in your STR’s.


6. In 1985 when I left the Army I applied for disability for my back. The term chronic is used 37 times in my STR’s about my back. I was on a very limiting profile from 4 November 1984 until I ETSed in August 1985. I worked one day in tobacco that fall when I was home on terminal leave and it nearly killed me. I went to our family doctor and got some muscle relaxers. Yet the VA rated my back as a zero percent disability. I would think that anyone that comes home after four years of service and can’t do what they regularly did before their service has a severe disability.


7. I also applied for disability for my neck in 1985. The term chronic is used 16 times in my STR’s about my neck. I have since had an MRI and found out that I had a partially crushed T-3, probably in the swimming accident back in August 1982. With all the pain and trouble I had with my neck while in service and the VA stating in 2000 that I didn’t have a neck injury documented in my STR’s I have to wonder if they ever looked into my STR’s for a neck injury before I sent them a copy of my own STR’s.


8. I have included a copy of a couple of pages of a transcript from a September 19, 2000 hearing I had with the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina with Paul Caudill presiding as Hearing Officer and Mr. Sims of the NCDVA representing me. I was lied to by both men. I was told that the hearing I just had in front of a Regional Office Hearing Officer was the same as a Board of Veterans Appeals hearing in front of a BVA Veterans Law Judge. What can be done about this now? Probably nothing. It just seems to be a constant theme throughout my dealing with the VA that I am lied to, mail sent to a years old address, CUE’s treated as correspondence, STR’s never reviewed and it is just as bad dealing with the health care side of things. A favorable outcome for these issues would be that the VA cleans up its act. The VA tells me where in 38 CFR it is written what form to use to file a CUE. The VA would then accept the CUE on that form or no form at all if that is how it should be. Your office could help me with how to get the VA to follow the law. Do I sent every thing directly to the VA Secretary? Send your office a copy of everything I file? File a writ of mandamus? I would love to have an explanation of why the VA doesn’t follow its own M21-1 adjudication manual or the laws as passed by congress.


I greatly appreciate any help you would be able to give me with these matters.

Sincerely,

OK, trying to tackle this in a way where you can understand and don't think I am attacking you.  You are both right and wrong at the same time.  In reference to VA sending mail to the wrong address that is on VA. When A veteran turns 55 he/she will not likely be scheduled for future exams.  When a veteran become 100% P & T, he/she will not likely be scheduled for future exams. Even after becoming 55 and being rated 100% P & T, if a veteran file a new claim or claims and if the veteran file a CUE claim(s) or an EED claim(s).  VA should schedule C & P exams on these types of claims for accuracy.  In these type claims the VA needs to determine if the claims are military related and the level of disability percentage.  There is something called Fenderson (Stage Ratings) that comes into play. With CUE Claims/EED claims VA must determine when the disability began and at what percentage it was and how the disability increase over time by raising the veteran's individual disability and  the veteran's overall combined disability.  By doing this it not only increase the individual percentage it would most likely give the veteran a higher overall combined rating before reaching  100%. Yes, that means you can get an earlier 100% rating,  I know you would want that right?  I am not on VA side and you can read my other posts but veteran's compensation are exhausting.  Remember  VA employees are human and yes they do make mistakes but those mistakes can be corrected.  I think that most veterans are screwed over but we fight to stay alive to get our benefits.  With a QTC being scheduled, that means that hamster wheel is rolling again.   

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