Been busy with CUE's lately

[Vync]

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.

 

 

[GBArmy]

Vync What is your opinion on this: The veteran should be eligible for S-DVI at the award of a grant for any NEW disability granted. In other words, if a veteran was at 10% and later, he submits and wins another disability claim, he has an additional 2 year time period to sign up i.e. the clock restarts again.

[Vync]

3 hours ago, GBArmy said:

Vync What is your opinion on this: The veteran should be eligible for S-DVI at the award of a grant for any NEW disability granted. In other words, if a veteran was at 10% and later, he submits and wins another disability claim, he has an additional 2 year time period to sign up i.e. the clock restarts again.

That is my understanding. However, there is some additional criteria on the S-DVI site. Keep in mind that this is just general info about qualifying for coverage. If you get approved, the next thing they do is determine if you are eligible for the waiver. If not, you'll have to start paying the premiums each month in order to get the coverage.

https://www.va.gov/life-insurance/options-eligibility/s-dvi/:

Quote

Can I apply for Service-Disabled Veterans’ Life Insurance?

You can apply for S-DVI if you meet all of the requirements listed below.

All of these must be true. You:

• Were released from active duty on or after April 25, 1951, and didn’t receive a dishonorable discharge, and
• Were rated for a service-connected disability (even if only 0%), and
• Are in good health except for any service-connected conditions, and
• Apply within 2 years from the date we grant your new service-connected disability

Note: An increase of a rating you had before—or a rating of Individual Unemployability, meaning you can’t work—doesn’t qualify you for S-DVI. 
Watch our video about the benefits of S-DVI

Can I get more life insurance coverage if I need it?

If you carry the basic S-DVI coverage and become totally disabled and unable to work, you can apply to get up to $30,000 more in coverage. This is called supplemental S-DVI coverage.

You may be able to get $30,000 of supplemental coverage if you qualify for a premiums waiver, and you meet both of the requirements listed below.

Both of these must be true. You:

• Apply for the coverage within 1 year from the date you get notice of the grant of waiver, and
• Are younger than age 65

Learn more about premium waivers

Who’s covered?

Veterans