CHECK your RETRO!!! (ask for audit)!

[broncovet 4,246]

As many of you know, I recently won my Earlier Effective date and smc claim.  The retro deposit was "way, way" off, and I knew it the minute I saw the deposit, as I had done a spreadsheet and checked it.  

So, my advice is to "check" your retro, and if its wrong ask for an audit.  I did, requested an audit and VA corrected it and sent me another deposit about 3 weeks later.   There are retro calculators:

https://cck-law.com/va-disability-retro-calculator/

Now, this retro calculator does not work for SMC.  So, I could not use it.  Dont let the name "spreadsheet" scare you.  With Microsft office its called "Excel", but with open office (free!!) its called "CALC".  

It is really pretty easy.  Look up the comp for each year, and put them in a column, next to that put the date.  For example, if you were 100 percent, and 18 months retro, just put in the current rate:

1 Feb. 2020            3279.22

1 Jan 2020             3279.22

1 Dec. 2019           3227.58   (cola)

 .....

keep going for each month and then just click "add em up", and it will total all of them in that column.  Its simple, but it is a bit tedious..You shouldnt mind "adding up your check" tho.  

If you do it this way, it should be accurate..at least if your dependents are accurate.  

[Buck52 3,235]

Great Info brocovet .I saved this to my favorites.

[Vet7707 0]

How do you ask for an audit? I believe my retro is incorrect too

[Berta 4,215]

I  requested 3 audits over the past 20 plus year-and my RO refused to act on those requests.They were ordered to pay me, on two of them- by the Regional counsel, on one ,and then in the second instance,  by General Counsel.

The third request I sent to the Finance Office of my VARO.What they had sent to me ,due to the Regional Counsel calling a CUE on them, was missing an entire year of DIC.They fixed that fast.

Also I have requested a fourth audit-in process, but this time I sent my audit request to the IG, also to the IG lawyer who handles VA audits, and to two RO directors.

I also filed 2 CUE claims- which I told the ROs, involved, -that if the audit is proper, I could withdraw the CUEs.

I have the whole story here on my situation. It involved 98 , 210 bucks.  That is a lot of cash the VA deliberately withheld from me.Good thing I fought back.

I suggest maybe a CUE claim is the best way to request an audit-although I did get fast result with the letter I wrote to the Financial Dept of my VARO.

This is the CUE I wrote and subsequently filed the audit request above.:

"I state that the VA failed to apply the basic concepts and evidentary requirements of  38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“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. “

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

 

The VA's CUE lies within this statement on page 2 of the January 17^th,2012 decision :

“ Entitlement to accrued benefits for cerebrovascular accident  under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993.                              Exhibit A

That is wrong based on all evidence in VA's possession at the time of the veteran's death.

"The veteran, Rodney F. Simmons was totally and permanently disabled by his August 9,1992 Section 1151 CVA until his death on October 14, 1994. His”residuals”certainly did not alter the medical fact of his total and permanent disability from his Section 1151 ,38 USC “ as if service connected” stroke on August 9,1992.

He was certainly housebound and that is not the issue here.

The VA's failure (CUE) to consider and evaluate the evidence VA had in their possession manifestly altered the outcome of the decision referred to above ,January 17,2012, to my detriment as the claimant and surviving spouse of the veteran, Rodney F. Simmons."

I then listed the multiple pages of evidence of my husband;s 100% P & T 1151 stroke, in their possession  at time of the decision.

They owe me 21 months accrued at 100% P & T plus SMC S.

The other CUE -I have already rattled that one off here---

The director tried to get me to believe a false statement by phone, twice.She tried to convince me that my husband was 100% total but not permanent when he died regarding he stroke-all of the evidence they had determined the stroke had totally and permanent disabled him.Much of it from the VA itself.

This was not an issue when they awarded him posthumously an upgrade from 30 % SC for PTSD.

I already rattled off the skirmish after they denied...they fixed their error fast. 100% P & T for SC PTSD.

However you handle this audit request- you could do what I have done for past CUE claims I had- I figured out by the specific rating charts over the years just how much they owed me and  attached that info, by year,  with the CUE claims.

 

 

 

 

 

 

[Berta 4,215]

Just to add....I didn't even know ,when I wrote to my RO's Financial office, long ago if they really even had a Financial Office-they had made ,by then so many errors in every claim I filed ,that my weird image of their financial office was a small room , filled with a sophisticated computer, for retro payments, but  that had to be programmed by a VA person- who might have been listening  and dancing to rock and roll music, with a lampshade on his head at the same time.

If you go to your VARO's site at VA.gov, they might even have a Financial office listed.I included with that letter, a copy of what the Regional ( Now called District ) Counsel sent to me , advising me he had called CUE on them.

The funny thing is that I got a  VA check in the mail for a five figure amount on a Friday-not too long after sending the letter to Financial  but the RC's letter had not arrived and I called VA because I thought the check  was a mistake. Then Monday I called and got the same 800 person and told him '" JIm-( we knew their names and voices in those days) I still think the VA made a mistake on that  check, but I spent it all at K mart Saturday-he laughed and said I know you are kidding, Berta, and the VA does not make a mistake like that.They just put on the 800 # computer that they have mailed you a letter."

 

[Marine Corp 69/70 37]

Got a BVA decision on a sleep Apnea claim. Had a sleep study a the VA on 04/16/2013 said to use a cpap, file a claim on 05/13/2013 got paid from 06/01/2013 to 01/01/2020. But I read that if you had a sleep study at the VA you get paid from when you get the cpap. Which is a month earlier it come to about a thousand dollars should I appeal it.

 

 

 

[Buck52 3,235]

YES APPEAL IT IF YOU WANT YOUR 1000 BUCKS.

[broncovet 4,246]

Marine Corp..Please ask your question in a new post.  (Not it someone elses).  Your effective date is the later of the date you filed or the date you got the cpap.  

[Jamezam 13]

On 3/28/2020 at 10:45 AM, broncovet said:

As many of you know, I recently won my Earlier Effective date and smc claim.  The retro deposit was "way, way" off, and I knew it the minute I saw the deposit, as I had done a spreadsheet and checked it.  

So, my advice is to "check" your retro, and if its wrong ask for an audit.  I did, requested an audit and VA corrected it and sent me another deposit about 3 weeks later.   There are retro calculators:

https://cck-law.com/va-disability-retro-calculator/

Now, this retro calculator does not work for SMC.  So, I could not use it.  Dont let the name "spreadsheet" scare you.  With Microsft office its called "Excel", but with open office (free!!) its called "CALC".  

It is really pretty easy.  Look up the comp for each year, and put them in a column, next to that put the date.  For example, if you were 100 percent, and 18 months retro, just put in the current rate:

1 Feb. 2020            3279.22

1 Jan 2020             3279.22

1 Dec. 2019           3227.58   (cola)

 .....

keep going for each month and then just click "add em up", and it will total all of them in that column.  Its simple, but it is a bit tedious..You shouldnt mind "adding up your check" tho.  

If you do it this way, it should be accurate..at least if your dependents are accurate.  

But how exactly did you request an audit? VARO, OIG... Thanks!

[broncovet 4,246]

Berta explained how to ask for the audit.  I did mine through my national VSO, who has an office at the VARO.  

But I think Berta suggested sending a letter to the "finance office" at your VARO, if I recall.  

[Jamezam 13]

38 minutes ago, broncovet said:

Berta explained how to ask for the audit.  I did mine through my national VSO, who has an office at the VARO.  

But I think Berta suggested sending a letter to the "finance office" at your VARO, if I recall.  

Thanks Broncovet, I’ve searched for three days trying to find any information about the financial office at the Seattle VARO.

Read all posts on Hadit for tips. Filled an appeal so far, but want to find person who will take real action. 

[broncovet 4,246]

Jamezam:  You have hit on what I think is "majorly wrong" with VA.  We are pretty much forbidden to know "who to call" that can fix our problem.  Several years ago, Allison Hickey posted her email, and she was "go to" to get er done.  Her position has apparently been eliminated...grrrrrr....

    So, now call the White House Hotline, that is, if your VSO cant/wont help you, and IRIS emails are unproductive (or ignored), AND you have called "Peggy" at the 1-800 number.  

    The "last straw" is filing a WRIT of mandamus to compel VA to release your records with the CAVC.  

[Buck52 3,235]

Who is the New VA Under Secretary?

 

[john999 976]

I remember being shorted on my IU effective date.  I knew that I had been in the VA hospital five months before I was awarded IU.  I wrote to the VA on a claim for asking my my retro.  I got about 6 months of retro for my IU. I was also granted SSDI back to the hospital date.  Later on I got Housebound, but they shorted me by eight months.  I filed a CUE claim.  I got my cue within a few weeks.  They knew they were wrong. When you get any award check it six ways to Sunday.  The VA does not care if you get your money.

[Jamezam 13]

I've read that the decision being challenged must be a "final decision" when filing a CUE. So I guess my next step is to file an appeal. If you do a higher-level review you can't submit new evidence. Would sending a statement in support of claim, C&P payment history, and an excel spreadsheet showing the retro pay discrepancy be considered new evidence?

That is, should I just appeal to the BVA?

[Berta 4,215]

"I've read that the decision being challenged must be a "final decision" when filing a CUE."

That is not correct. Kanenut posted the exact M21-1MR version on this topic:

 

Myself and some vets here have been successful in filing CUE in the appeal period.

 

[Jamezam 13]

Thank you Berta... I believe the whole confusion about CUE's being filed after a decision being final, is as simple that has always been the assumption because we Veteran's follow the file new claim>receive denial>appeal>receive denial again, whether from RO or BVA. Then we go looking for errors.

After viewing M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions and 38 CFR § 3.105 - Revision of decisions. I don't see any language which states a decision must be final in order to file a CUE.

III.iv.2.B.1.d.  Binding but Not Finally Adjudicated Claims states: A claim that has not been finally adjudicated (which includes claims where a binding decision has been issued but the appeal or decision review period has not expired) is still considered a pending claim under 38 CFR 3.160(c). A pending claim simply being a claim which has not been finally adjudicated. THEN...

III.iv.2.B.1.e.  Revising Binding Decisions states Use the table below if revising a prior decision that is binding as defined in M21-1, Part III, Subpart iv, 2.B.1.b to determine which revision authority(ies) can be applied. THEN...

If … "the Veteran filed a timely legacy notice of disagreement (NOD), and elected de novo review in a timely manner..." Then the decision may be revised … when a clear and unmistakable error (CUE) is identified,

There is then language over and over in the chart which states "...when a CUE is identified" THEN in...

38 CFR § 3.105 - Revision of decisions

(2) Error in binding decisions prior to final adjudication. Prior to the time that a claim is finally adjudicated, previous decisions which are binding will be accepted as correct by the agency of original jurisdiction, with respect to the evidentiary record and law existing at the time of the decision, unless the decision is clearly erroneous, after considering whether any favorable findings may be reversed as provided in § 3.104(c).

My lay person point is that there is language everywhere within M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions that clearly states a CUE is a viable option when a claim is "binding"!  And, 38 CFR § 3.105 - Revision of decisions clearly states CUE's are viable prior to finally adjudicated claims!

Edited August 16, 2020 by Jamezam
Update to response

[Berta 4,215]

Yes, this change to M21-1MR was made, per former Secretary Shulkin's office, to me, regarding a letter I had sent to the former SEC as to two points I felt needed to be changed in  M21-1MR.

The other one was regarding the Reconsideration deadline for NODs.

I am so glad that others here have successfully used this tactic as well as me.

I wrote a CUE that also stated it was a NOD, as well in a decision my daughter had received from DEA in 1997.

VA Educational dept fixed it in 3 weeks. She had sent them her DD 214 and the decision that she was eligible for DEA and they tried to award her only one month of DEA....but she was awarded 7 years more due to the CUE.

She was so disgusted she never used Chapter 35 benefits and is finishing her Masters, by paying for all of it herself.

Re: CUE in appeal period-there is no regulation that prohibits filing that type of CUE, so no need to amend 38 CFR,and 38 USC.