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Been busy with CUE's lately


Vync
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  • Content Curator/HadIt.com Elder

Hello everyone,
I have been a bit busy with CUE research and have not had much time to be on here. I was quite surprised by what I learned.


CUE for denial of the TMJ CUE
Two CUE motions were submitted in 2019. In January 2020, one was granted and the other denied. While processing the claim, the VA made a number of mistakes along the way and I put in a call to the White House VA Hotline. Eventually, I got a call back from an actual rater at the VARO (different VARO than the one who made the decision) and we talked through things:

1. Six week delay due to VA requesting medical records already present in my claims folder..
2. One week delay because VA didn't know if CUE required a specific form. I pointed them M21-1 indicating no form is required.
3. CUE routed to team that does supplementals instead of HLRs.
4. 4.2 and 4.6 were not applied correctly. Supplemental team looks at C&P exams and new evidence, but violated 4.2 and 4.6 by ignoring radiology exam and initial misplaced C&P notes with proof of limited ROM.
5. Rating decision was written using short form narrative, but M21-1 requires CUE/HLRs to be written using long form narratives to explain persuasiveness of evidence and to address each complaint.

If I win, this means my initial rating of 10% would increase to 20% or 30%.

It gets funnier: Last week, I received a denial letter stating that both CUE requests could not be processed because the one year appeal window expired in March 2001. 
 

CUE for denial of S-DVI life insurance waiver
In 2013, I won my 100% rating and applied for the S-DVI life insurance waiver, but it was denied because I was still employed. I contacted the VA Insurance Center asking them to tell me where in the US Code or 38 CFR that the term totally disabled was redefined for insurance purposes to exclude veterans who were gainfully employed. Instead of receiving the answer, I received a denial letter in January 2020. I put in a call to the White House VA Hotline to simply request the answer. I received calls from a couple of individuals who work at the VA Insurance Center.

1. Between the 1940s and 1980s, there were 70 federal court cases from the 1940s to the 1980s that merely referenced the waiver for totally disabled veterans. Six actually made decisions based on the waiver and employment status. One found in favor of the VA, but five in favor of the veterans with the judges excoriating the VA in a number of ways.
2. After The Paperwork Reduction Act of 1995 went into effect, in 1996 the VA removed regulations prohibiting the waiver for totally disabled employed veterans placing it in M29-1, an internal policy/procedure guide like M21-1. At that point, the VA should have relied solely on 3.340 for criteria defining a veteran as totally disabled. 38 CFR carries more legal weight than their own internal policies and procedures.

If I win, then that means the VA incorrectly relied on internal policies to take precedence over a clearly written regulation and I should get granted coverage and the waiver.

 

 

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Good for you.  

   Your post shows the VA "has no idea" what they are doing, which is consistent with the way they handled my claim over the past 18 years.  Your Cue on the insurance waiver looks great to me.  

However, in reference to TMJ, "only" your item number 4 could be CUE.  Items 1-3 are "delays" and that isnt CUE, in no small part because CUE must be outcome determinative.  

Item 5 is probably not outcome determinative either.  You have the burden of showing the error that VA made "resulted in monetary benefits not paid", except for the error.  So, in the example of the "short form" vs the "long form", I dont see how that would be outcome determinative error.  CUE isnt "just" error..its a specific kind of error.  "Harmless error" such as if the VA misspelled a word is not outcome determinative.  

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17 hours ago, Vync said:

Hello everyone,
I have been a bit busy with CUE research and have not had much time to be on here. I was quite surprised by what I learned.


CUE for denial of the TMJ CUE
Two CUE motions were submitted in 2019. In January 2020, one was granted and the other denied. While processing the claim, the VA made a number of mistakes along the way and I put in a call to the White House VA Hotline. Eventually, I got a call back from an actual rater at the VARO (different VARO than the one who made the decision) and we talked through things:

1. Six week delay due to VA requesting medical records already present in my claims folder..
2. One week delay because VA didn't know if CUE required a specific form. I pointed them M21-1 indicating no form is required.
3. CUE routed to team that does supplementals instead of HLRs.
4. 4.2 and 4.6 were not applied correctly. Supplemental team looks at C&P exams and new evidence, but violated 4.2 and 4.6 by ignoring radiology exam and initial misplaced C&P notes with proof of limited ROM.
5. Rating decision was written using short form narrative, but M21-1 requires CUE/HLRs to be written using long form narratives to explain persuasiveness of evidence and to address each complaint.

If I win, this means my initial rating of 10% would increase to 20% or 30%.

It gets funnier: Last week, I received a denial letter stating that both CUE requests could not be processed because the one year appeal window expired in March 2001. 
 

CUE for denial of S-DVI life insurance waiver
In 2013, I won my 100% rating and applied for the S-DVI life insurance waiver, but it was denied because I was still employed. I contacted the VA Insurance Center asking them to tell me where in the US Code or 38 CFR that the term totally disabled was redefined for insurance purposes to exclude veterans who were gainfully employed. Instead of receiving the answer, I received a denial letter in January 2020. I put in a call to the White House VA Hotline to simply request the answer. I received calls from a couple of individuals who work at the VA Insurance Center.

1. Between the 1940s and 1980s, there were 70 federal court cases from the 1940s to the 1980s that merely referenced the waiver for totally disabled veterans. Six actually made decisions based on the waiver and employment status. One found in favor of the VA, but five in favor of the veterans with the judges excoriating the VA in a number of ways.
2. After The Paperwork Reduction Act of 1995 went into effect, in 1996 the VA removed regulations prohibiting the waiver for totally disabled employed veterans placing it in M29-1, an internal policy/procedure guide like M21-1. At that point, the VA should have relied solely on 3.340 for criteria defining a veteran as totally disabled. 38 CFR carries more legal weight than their own internal policies and procedures.

If I win, then that means the VA incorrectly relied on internal policies to take precedence over a clearly written regulation and I should get granted coverage and the waiver.

 

 

my DUDE!!! can i hire you?!?!?! this is great man. good work

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Vync Your eval and analysis of the S-DVI insurance is really impressive. Scary, but impressive. As a stupid question, do you have to say that the denial resulted in financial harm (and mental anguish) because you didn't get the additional insurance?

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On 4/21/2020 at 7:20 AM, broncovet said:

Good for you.  

   Your post shows the VA "has no idea" what they are doing, which is consistent with the way they handled my claim over the past 18 years.  Your Cue on the insurance waiver looks great to me.  

However, in reference to TMJ, "only" your item number 4 could be CUE.  Items 1-3 are "delays" and that isnt CUE, in no small part because CUE must be outcome determinative.  

Item 5 is probably not outcome determinative either.  You have the burden of showing the error that VA made "resulted in monetary benefits not paid", except for the error.  So, in the example of the "short form" vs the "long form", I dont see how that would be outcome determinative error.  CUE isnt "just" error..its a specific kind of error.  "Harmless error" such as if the VA misspelled a word is not outcome determinative.  

You are correct.

I was just stating the mistakes that were made overall. Honestly, it would not surprise me if the VA makes even more mistakes before this is over.

The specific CUE points were handled thoroughly in my submission (overlooked solid proof of functional loss, outcome determinative from 10% to 20 or 30% rating).

The long/short form really got me when I was learning about it. It's an accountability mechanism. Regardless of which team writes the rating decision, it is the type of request that dictates the level of detail and requirements in each response.

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On 4/21/2020 at 8:37 AM, blahsaysme2u said:

my DUDE!!! can i hire you?!?!?! this is great man. good work

Lol, I do appreciate it. It is a lot of research, determination, and facts in my effort to win claims.

 

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On 4/21/2020 at 8:38 AM, GBArmy said:

Vync Your eval and analysis of the S-DVI insurance is really impressive. Scary, but impressive. As a stupid question, do you have to say that the denial resulted in financial harm (and mental anguish) because you didn't get the additional insurance?

In a way, yes. If I would have died from the heart attack last year, my beneficiaries would not have received the $10,000 coverage granted under the waiver. I could have paid premiums to get coverage, but the error was made prior to that when they denied the waiver.

While researching, I noticed some of the court decisions focused specifically on the waiver and employment status were granted posthumously in favor of the veterans' beneficiaries. I thought it would not be fair to put my family through that and wanted to chase this down before it is too late.

Please keep in mind that I'm not a law expert. I could still be wrong. Every law firm I engaged opted against representing me unless I coughed up a retainer fee. However, one advised me to pursue via HLR and/or BVA to see what happens and then follow up with them win or lose.

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