CUE

[Jangs1963 3]

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 4,215]

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 4,246]

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 4,215]

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 4,246]

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 3,235]

 

 

 

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 4,215]

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. 

[Berta 4,215]

Buck, you can file CUE on any decision that holds a CUE , but those denials might well have one decision that contains  CUE,  that would cover them all.

 

 

 

[Buck52 3,235]

I understand  but what decision I could use?   

My arurment is they went from a decison date that was decied at a DRO Hearing on May 7th.2003 .and went back to Dec 20th 2002.

I first filed in April 4th 1998  was denied NOD July 2002  was denied, reopen this claim in 2000 and NOD AND WAS SERVICE CONNECTED AT 0% 

After this  still in the year 2000  I went for a HEARING TEST BECAUSE I GOT A LETTER TO COME IN FOR THAT ON A CERTAIN DATE IN 2000  I DID   DID THE HEARING TEST  ALL THE CRITERIA WAS DONE BY THIS VA AUDIOLOGIST  AND APPARENTLY HE SENT THIS TEST IN TO MY R.O.  (BECAUSE I NEVER DID)

This VA Audiologist did  and even though it said on this hearing test sheet  this test can not be used for rating purposes...but they used it anyway   when this Audiologist sent it in for a increase in my hearing,  and I was rated 50%....in 2002 I went in for a c&p for increase in my hearing loss  and the C&P Examiner accused me of Malingering  which in turn cause a DRO Hearing to settle this..I got a private IMO TO REBUT This VA C&P Examiner and  won my case  I won the TDIU P&T  I HAVE THE DRO LETTER.....THIS WAS ON MAY Th 2003   he stated although you show to stopped working in 1999  we paid you back to Dec 10-2002 the date you filed for increase.... when actually it was the VA Audiologist that filed for increase in 2000 . I need to get all these records in order and compare these dates...but I have 3 different rating sheets with the same award the tdiu p&t and the tinnitus  all three of these rating sheets have different dates  and they are using the Dec 20th to go back to from May 7th 2003.

I want them to go back to the date facts were FIRST found on my hearing loss which was July 20 1998  not the date I first filed...but that too if they would but  the facts found would be the date I  showed to have a hearing loss which was July 20th 1998

I HAVE THE LETTER AND THE TEST FROM THE AUDIOLOGISTS THAT PERFORMED THE TEST AND WROTE ME A OPINION LETTER.

THIS LETTER IS DATED JULY 20TH 1998

[Buck52 3,235]

Note:* I was in a hurry when I type the above information so its not going to be Accurate 

This above I am not 100% on these filing dates  but I first filed in April 1998. since then my first denial   this claim has been under continuous prosecution. from  April 4th1998 -May 7th 2003 . my retro they paid me from was May 7th back to Dec 20-2002  minus 50% from 2000  the year I got the 50%  my retro was 9.975.00 (short I would say) bout 5 1/2 months  minus the 50% from the year 2000

I am trying to sort these dates out as I go  and usually find something in my C-FILE that turns things around.

I realize I will need to CUE Them if this EED is incorrect  its finding the correct EED or the one they say I have to use?

and then I can CUE IF ITS DIFFERENT FROM THERE'S  AS TO WHICH I'M FAIRLY CERTAIN IT IS  OR WILL BE.

just need to get all these dates lined out and separated to show the CUE.

 

To the OP  I am sorry for posting all this  I  never meant intintally to hi-jack your thread.

...Buck

Edited March 27, 2020 by Buck52

[Berta 4,215]

Buck, I hope you realise that the CUEs I have written here for specific vet members, were based on the facts of each case , due to their downloaded decisions, and were prime facie CUEs-

meaning the CUE was so obvious, it took took me very little time to prepare and post the CUE claims here for them.

Jangs CUE I posted here:

It took me mere minutes to prepare after reading the whole thread again and post the CUE here for him.

His CUE was Prime Facie- legal term meaning obvious ,at first glance...based on his downloads here.

Your situation is far different and I hope you find an accredited agent with past experience in CUE.

This would possibly involve many phone calls with the agent and for sure , emails with attachments as well  and/or snail mail submissions to the agent.

My point is we have no facts here to base a CUE on because your situation is not prime facie.

If anyone here,with CUE expertise  and some free time, can help you via email, I hope they contact you.

I do not do claims issues via email.

My time here has become very limited-because the electronic members of my church are volunteering to help with the fact that all we have is our PC and phones,  to continue church business.The sermons are online but we have far more church issues besides  the sermons.

I am hoping the stimulus will cause many non PC members of my church to consider getting a PC and internet access. A member in her 80's  called me yesterday, and said she really needs to get with it, and figure out how to use her I Pad better. The Internet has become a critical tool for veterans and I sure hope many non PC vets will also consider using some of their stimulus to get on line.

We do have many PC vet members in my church and some were at our online prayer meeting via zoom yesterday.

Others have to be called. It all takes time.

 

 

 

 

 

 

[Buck52 3,235]

I understand Ms,Berta And Thank You for all your help  I do go back and read your templates and CUES you help with these Veterans here on hadit.

I am working on this issue with broncovet we correspond through emails, my issue is fairly complex and I am seeking a VA Claims agent  that lives fairly close to me  so we can make eye to eye contact, and I can just take him what records I do have,

I also may request my C-file because there seems to be a lot of records missing in the one I do have, I received my c-file back in 2014 on CD but again a lot of records are missing and some that never printed when they copied  the paper c-file over to digital,

I have several pages with the Official VA Seal Stamped on them and nothing else on these pages  and if it did not copy the  written part.?

.I guess I'll be out of luck on that ,I am looking at hiring a VA Accredited  Claims Agent at present that lives about 30 miles from me.

 I am lookin at these VA Seal Stamped dates very close that are on these pages and try to line up the dates that are on them and try to puzzle together the records I do have if they are favorable to me  or has anything to do with this issue. (something should be on these pages with the VA Stamped Seal)

So I been thinking about requesting my up-dated C-FILE Again and hope it has all my records in it?....or maybe hopefully this VA Claims Agent will have access to the VBMS  if he don't I probably won't hire him

I need to look into the VBMS for help  or some help that will help me figure this all out.

   This Claims Agent name is Robert Blacklidge he was Accreditith on 3 /7 2011  He seems to be very busy but I am going to talk with him and see what he think about all this?

I do hope my issues will be prime facie CUEs-