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

[broncovet]

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.  

[john999]

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]

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]

"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]

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]

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.