CUE

[Jangs1963]

Berta, I want to thank you for your assistance in my CUE claim. I did everything you said. So, I faxed everything in on 12/16/19. On 01/25/20 it moved to evidence gathering etc. then I received correspondence as for all the details of the accident. Which I wrote a summary of the dates places and what occurred. I downloaded it on 02/4/20.  It is showing they received. On 03/10/20, it indicates “we closed the notice of request 1.” Which is showing request 1 as JSRRC Coordinator Review.  No longer needed.  Does that mean VA received info on my accident from JSRRC? Looking at the projected completion date, it is showing August 2nd. Does that seem like a long time to decide the CUE? I had no idea what JSRRC was until I researched it. Which to me seems like the hidden black book of information that we never get to see. 

[Berta]

Jangs, the VA "completion dates" are not in stone- and can change considerably through the course of a claim.

As I mentioned here I had success with CUE  within 3 weeks on 2 or 3 issues, and also on a CUE VA Edu made on my daughter's Chap 35 DEA.

But a Very Obvious CUE I filed in 2003 took 8 years to resolve, at the RO level, and was set for BVA transfer but I included a request that my Nehmer AO IHD  claim RO properly adjudicate it as well as a another 2004 CUE , for a proper IHD decision. Nehmer awarded that CUE- the other was a direct SC award for SC IHC AO, but the IHD CUEfiled in 2004 , is still pending.

I have 2 CUEs pending (one on the 1151 IHD claim)that might be resolved by a proper audit request I made  and I was given a Sept,2020 completion date for both issues.

I really do not expect it to take that long.

My evidence was overwhelming for the CUEs and the audit request.

And luckily it was all sent to a different VARO, which is great because my RO cannot read.

You might well have had enough evidence to cause VA not to need to consider JSRRC.

I have seen JSRRC inquiries used as Evidence by the VA to deny claims here over the years .....and when I told the vets to contact JSRRC themselves, they sometimes found out VA never even tried to contact JSRRC but said they did.

Will VA lie? Yes....my enormous C file contains decisions that contained deliberate documented lies....even in letters to my Congressman, and 2 Senators.

I sent my audit request to the IG, VISN VA  District Counsel, and two directors-of  the Nehmer VARO, and Buffalo VARO. An extreme measure---- but I also gave them proof of why I contacted the IG.

I added at the end of those letters to all above,  that ,

just as my husband had been victimized by VA health care, that caused his untimely death ( FTCA/1151 awards) I also have been victimized ,as a claimant , by the same level of incompetence , by the Buffalo VARO and my C file will reveal documented proof from my RO , of what I mean. 

 

 

 

 

 

 

 

 

Edited March 27, 2020 by Berta
in cloud

[broncovet]

I always recommend a Veteran obtain his cfile, and only then can you see if VA got your evidence.  Now this is a good reason to have a VSO...if they have VBMS access...then you can see in real time what information is in your cfile.  

VBMS access is superior to ordering a copy of your cfile in several ways:

1.  You get it in real time.  

2.  By the time you get your cfile from ordering it, it will be obsolete..as new stuff could be added and old deleted.  

3.  With VBMS access you should be able to see where VA is at in processing your claim/appeal.  This is important, because, as Berta pointed out you cant trust VA, and they sometimes "close" claims without adjuticating them.  This is bad, very bad.  The Veteran thinks "its just a backlog", and some VA employee has shut your claim down, most often to make themselves or their bosses "look good on paper", because that makes it look like the backlog has been reduced.  Instead, it causes an increase in appeals, uses up resouces unnecessarily, and frustrates the Veteran because he, correctly has no idea what is going on.   Of course, this is prohibited by 38 CFR 3.103, BUT VA does it anyway and gets away with it "en masse".  

     Someone should get legislation passed to prevent VA from doing this.  VA execs get bonuses based on stuff like reducing the backlog, so they cheat by asking the employees to "close" claims in progress, to make it look like the backlog is reduced, when it is actually worse than reported.  

Edited March 27, 2020 by broncovet

[Berta]

Well put Broncovet- regarding CUE-

A CUE if it occurs, is found within the actual decision, and often on ratings sheets-which now seem to be within the rationale, instead of being attached separately.

And of course the Evidence list may or may not list all evidence , but that does not mean the RO considered all evidence. If they list it they must make a comment on it in the decision, as to why or why not it was not probative evidence.

We hardcore claimants have learned that we ourselves have to, in essence, do what the VA should do.

The 5103- I will repeat what I stated before- not only was my VCAA letter illegal, in 2003 (BVA agreed with me) and because I complained- the Director of my POA was suddenly removed because he ,in a letter, told me, it was in full compliance with the VCAA. It was not.

My 5103 waiver (aka VCAA)a few years ago contained two claims I had pending.

I listed on the back of the 5103 form the evidence they had, and then a VSO from my RO called and confirmed that evidence to me...for both claims.

They denied one claim, then in 3 weeks reversed-because I filed CUE and mailed it the day after I got the denial- as they had ignored my sole piece of evidence.

The they denied the other claim- I think the VSO shit canned the other evidence for the other claim, as that decision ( supported by 2 phone calls from the director, states that although my husband was 100% T for his 1151 stroke, he was not Permanent with it when he died. VA caused the stroke and then provided no treatment or Cure for it.

I did receive 100% retro for 6 months, but they still owe me for 16 or more months.

My evidence of permanency  came mostly from the VA itself, even from a former VA secretary.

Somehow this was never an issue for his 100% P & T award for PTSD.

I dropped a dime big time, in my correspondence to the IG on that-

Any total SC or "as if 1151 SC" disability, that continuously  lasts until a veterans dies ,becomes Permanent at death.

How many widows of 100% SC Total vets , who were deemed Permanent as well by their death ,got the same BS phone calls from the Buffalo RO Director- even if they were 100% P & T for ten continuous  years- this director could still try to get their survivor  to believe they were not eligible for DIC.

I know a former member here who had my email from long ago and he has had MANY problems with this director, and filled an IG complaint as well.

I told him to contact Dr Bash long ago on his issues, he did and he won, but since then he has had further issues with the RO I deal with and he, like me  he is Fed Up.

If the IG gets a complaint, they do not handle comp /claims issues, per se, and will send you a letter or email to that affect, 

but if your complaint fits into the criteria on their web site,  they will consider it.

In part the criteria i:

"The OIG Hotline receives, screens, and refers OIG mission-related complaints within VA. Cases are accepted on a select basis regarding issues having the most potential risk to veterans, VA programs and operations, or for which the OIG may be the only avenue of redress."

https://www.va.gov/oig/hotline/

I told them why, and my C file bears that out, I had no other avenue of redress. Obviously my issues put survivor's of veterans  at risk when a RO director manipulates established VA case law to deny their claims and their rights ,under 38 USC.

 

 

 

 

 

 

 

Edited March 27, 2020 by Berta

[broncovet]

Thanks Berta for posting to that.  I will add we have "one more" method, with or without an IG complaint.  I have used it.  Its called a "Writ of Mandamus" to the CAVC to compel VA to (enter what you want VA to do, such as issue a decision on a claim you filed that the VA never adjuticated).   While I know YOU are well aware of a Writ, I mention this for other Vets who may be reading that dont know about the writ.   

Im only aware of "one" Writ that was granted by the court, BUT, that does not mean they dont work.  Here is how mine worked.  

I filed a Writ to compel VA to comply with the VASEC's orders, in 2008, in regard to shreddergate.  I filed the infamous "Special handling due to mishandled documents" (SHR) request, and VA pretty much ignored my request, but denied it quietly without a formal decision.  

I had no other options...it does not fit in the "appeal" or "cue" categories.  Even tho my Writ  was denied, the reason it was denied was telling.  The VARO was required to "respond" to the court on my allegations.  They responded, in summary, that "they were working" on the problem, and "it would be resolved soon" so the Writ was not needed.  So, the CAVC denied the writ.   VARO's testimony was a lie..they were not "working" on my problem they were busy "covering it up", and they wanted to do so in a way that did  not allow "other Veterans" to be able to do what I did.  That is, "call" the VA on shredding my evidence, and hold them to it.  

Lo and behold within about 30 days or so, I got a VARO decision awarding my full benefits (100 percent).  So, even tho the writ was denied, it fully accomplished my purpose.  It really didnt fix shreddergate, but the VA did not want "another" Cushman, where the VA was found to have modified (falsely) Veterans docuements in order to deny him benefits.  

https://caselaw.findlaw.com/us-federal-circuit/1346393.html

Cushman (federal circuit) was decided in August 2009, but, obviously VA knew about that way, way before the judges decision.  

Cushman is a "black eye" for VA..they got punched in the face.  

If I had known about Cushman, I may have appealed my Writ denial to the Federal Circuit because Cushman didnt even win until the Federal circuit.  

VA probably knew, internally, that Cushman "was going down", and they did not want "Cushman 2".  

 

Edited March 27, 2020 by broncovet

[Buck52]

 

 

 

Ms Berta quoted

'' A CUE if it occurs, is found within the actual decision, and often on ratings sheets-which now seem to be within the rationale, instead of being attached separately''

My problem is  as  for as ''CUE'' which Decision and ratings sheets do I use  with 3 different ones in my c-file all for the same decision but different dates???

Alex mention this as a typo error...my problem is which is the ones to use for the correct typo error?    &  if typo  error are always in VA favor.

of course I'd use the dates that best benefit me  but VA DON'T SEE IT THAT WAY.

  I don't know for sure but may find out when I file my CUE for EED. AND REOPEN MY CLAIM   i AM STILL GATHERING UP EVIDENCE AND GETTING  AN ACCREDITED CLAIMS AGENT .(so he can look into the VBMS)

broncovet has helped me tremendously on this.  he has spent a lot of time with me and research & his past experience. 

got to get the Ball Rolling soon.

Edited March 27, 2020 by Buck52

[Berta]

Broncovet, a Writ of Mandamus I filed long ago, was denied but I sent my RO a copy of it, and it did get thumbs out of butts at myRO.

I am fully prepared to file a Mandamus Writ if I do not get a proper resolve of my CUEs and audit, as my writ will be geared to any lawyer who contacts me, if they still contact anyone filing at CAVC, and it will be because the VA has disregarded an established OGC Precedent Opinion. ( # 08-97) which had never been altered or withdrawn, and that opinion is based on and clarifies  Congressional intent.