CUE and BVA 2020

[Berta]

Vets are fiing CUEs more and more these days.

May of them fail at the RO level but some are awarded at the BVA:

https://www.va.gov/vetapp20/files1/20000710.txt

Of the 2020 BVA  decisions posted so far, at the BVA web site, 277 contain CUE, and BVA decisions helped me tremendously over the years as they show what really is or isnt a CUE.

I was interested solely in the PTSD CUE decision:

"The Veteran contends that he is entitled to an earlier effective date prior to January 11, 2012, for his service-connected PTSD. The Veteran specifically contends that his PTSD should be service-connected back to September 2009. As there is a balance of both positive and negative evidence of record, resolving all doubt in favor of the Veteran, the Veteran’s claim of an earlier effective date for service connection for PTSD back to September 11, 2009, is warranted.

Procedurally, the Veteran filed for service connection for PTSD in September 2009. A December 2009 rating decision denied service connection as the RO found the Veteran did not have a diagnosis of PTSD. The Veteran filed a timely NOD in January 2010 which was acknowledged in a Deferred Rating dated September 2010. A Statement of the Case (SOC) was issued in May 2012 that found the Veteran’s stressor was conceded but the Veteran still had no diagnosis of PTSD. The Veteran then filed a VA Form 9 in July 2012 which was addressed in a March 2015 rating decision with a grant of service connection for PTSD effective January 11, 2012.

The Veteran then filed a timely NOD as of April 2015 requesting an earlier effective date for his service connection of PTSD back to March 2009. A SOC was issued January 2018 denying an earlier effective date and the Veteran filed a VA Form 9 in April 2018. The Board finds that the December 2009 rating decision is not final and is still on appeal."

( the stressor was conceded but NO PTSD diagnosis until January 2012....???? until the BVA found the March 2009 diagnosis in his records)

"After thorough review of the Veteran’s record, specifically his VA treatment records the Board finds that the Veteran was diagnosed with PTSD in March 2009 that was found to be directly related to his active duty service in Vietnam. See CAPRI records submitted October 2012. As the Veteran did not file his claim for entitlement to service connection until September 11, 2009, the Board is able to grant service connection back to the date of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Therefore, the earliest date that the Veteran can receive is September 11, 2009. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009."

Although the BVA found this PTSD claim was still an open issue on appeal, the BVA granted the PTSD CUE.

[Berta]

This is a false and unfounded statement:

"A CUE can only exist on a prior final claim. "

The sole VA change to CUE regulations ,in decades, is what Kanewnut posted, as to the M21-1MR excerpt.

It states:

"CUEs can be alleged by a claimant or discovered by VA during the adjudication of a claim. "

'During' is the key point I had made to Sec Shulkin, with my personal evidence ,I enclosed, as copies of my CUEs and the VA's reversals, within the appeal ( the 'adjudication' period).

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015808/M21-1,-Part-III,-Subpart-iv,-Chapter-2,-Section-B---Revision-of-Decisions

As I said that M21- 1MR change resulted from a letter I wrote to former Secretary Shinseki....as well as the extension of NOD deadlines to Reconsideration requests.

If you have a question on that I can give you Dr. Shulkin's phone number.

I would have to give it to you via email.

You can send him the link to this discussion,if he gives you his email addy.

He is still actively works for the betterment of the health of veterans.

Regarding Haines, cited by Helpdesk:

I suggest you read Haines V. West:

https://www.leagle.com/decision/19981452154f3d129811283

 

That shows why Helpdesk's statement is Wrong.

The widow never filed a CUE-the dead veteran did. She never filed properly for accrued, and was not eligible anyhow.

My CUEs were based on my accrued status, as a survivong spouse.

We have vets here who followed my advice and had a denial reversed under CUE within a very short time-because they filed the CUE ASAP, within the appeal period.

I have listed their names here under a search.

I do not think the helpdeck has ever opened any of the VBMs, 

and probably most vet reps, VSOs, and agents never purchase it either.

NVLSP has considerable info in every VBM since 1991, they have published, and by reading BVA denials and awards of CUE -ever since BVA came on line, that is where I honed in my knowledge of CUE.

I am tired of coming to this site and having to justify  established VA case law-

vets have to believe who they want to believe- and if they get screwed so be it-

and remember -accredited agents have a boss - it is the OGC.

I am preparing my complaint to them.It will be easy , it is basically copying the same evidence that caused Dr. Shulkin to change M21-1MR.

I already copied the response I got from POTUS, thanking me for my suggestions, as evidence.

They cannot accept snail mail due to COVID- They can take attachments at the email OGC accreditation addy I posted in a different thread the other day.

Maybe that will stop these time wasting discussions , that contain unfactual  amd unfounded statements regarding CUE claims, by individuals who have never even succeeded in  a CUE claim.

 

 

 

 

 

Edited May 2, 2020 by Berta
added more

[broncovet]

Alex posted:

Quote

.... the VA Secretary declines to call a current live controversy error a CUE and prefers to describe it as a ratings "error" correction. 

THIS is apparently what all the "splitting hairs" is about.  

From the Veteran's standpoint (and this is what hadit is  about..Veterans..not attorneys, not non attorney practioners, and not VSO's), Berta's method provides a quick resolution to the problem and gets the benfits delivered quickly.  Most of us dont have phone numbers of VARO raters...VA seems to make sure that does not happen.  So we file a Cue and accomplish the same result.   

I say we leave the defination of "CUE" vs "rating error correction" up to the CAVC should they be so inclined to take up this contorversy.   These definations may even be "ripe" for such an appeal.  Until/unless  the CAVC decides to distinguish or merge the definations of  "cue" with a "rating error correction", it appears this controversy will continue.   Even if the CAVC has already done so, or chooses to take up the controversy in the future, it probably wont matter, because many of us wont read the CAVC opinion, including raters, and the rest of us it probably wont matter.  

Heck the CAVC took years in deciding the defination of "claim" and Im not even sure that is fully resolved either.  The term "claim" sometimes means "issue in a claim", full claim, pending claim, unadjuticated claim, cue claim, appeal, appeal on review, or a few others.  

It may even be in a Veteran's best interest to "relabel" the Cue as a "ratings error correction", but Berta indicates most raters are not splitting those hairs, and instead views the Cue she files as a "rating error correction".  

My advice is for Alex and Berta to look at the greater picture (helping Veterans) and not focus on whether one is "right" or not about such a defination.  The question of whether one is "right" or not is always an opinion.  Even the CAVC posts "opinions", so let's just get along and get to the business of helping Vets, a passion in which Berta and Alex share.  

Lets just all get along, put Veterans first, not being right first.  

 

Edited May 2, 2020 by broncovet

[Berta]

Is it Hadit's new policy Not to correct false advice?

It is not a question of being right or wrong....the issue involves established VA case law.

I have emailed the OGC about this, giving his name and accreditation # 39029,asking them if they would accept my evidence by snail mail- the email alone Alex sent me is 5 pages long, as a print out.

I don't make stuff up here. I do not manipulate VA regulations. VA does enough of that crap themselves in order to deny.

This has been going on too long, and nothing is done about it.

If we do not correct bad advice , we are condoning it. How does that help any vet here?

Alex can retract his bad CUE advice  here or deal with the OGC about it, when they get my full  complaint....and the evidence. He made another false , Phenomenally stupid and ludicrous statement about the BVA-in above thread- no one caught it except me, and that too will be part of my complaint.

What is everyone afraid of?

When he stated in email to me that he held Tbird's POA, as I stated in a different thread I do not care if he holds the POA of Pope Francis- and I do not even know is he actually does or not-

and it does not give him the right to spout ridiculous statements that have no basis at all in 38 CFR. 38 USC, M21-1MR or any other established VA case law, whatsoever. And it does NOT help vets at all.

 

 

 

 

 

 

 

 

 

 

 

Edited May 2, 2020 by Berta
spelling

[Buck52]

Great Post broncovet,

I always wanted to know what came first

 The Chicken or The Egg??

I've always had the thought helping a Veteran in anyway I can if I am wrong on some of the Advise I give I know here on hadit  there's a lot more highly intelligent Individuals educated in VA law and regulations and criteria set forth in the CFR's to chime in and correct me or   or others  that post,  so that the Veteran in need  can work his claim and be steered in the right direction, we all are never to old to learn.

And here on Hadit  Thanks to Ms Tbird  we all get this information and advice Free of charge  and not have to worry how were going to pay an attorney or claims agent, if a veteran will listen to these great folks on hadit  thats all he needs and apply his claim accordingly.

I am so glad we do have these type individuals, if it was not for these elders here on hadit  I certainly would not be where Iam today   with my service connection &Rating and a Home to live in. the truth be known I'd more likely as not be 6 ft under.

[Berta]

"It may even be in a Veteran's best interest to "relabel" the Cue as a "ratings error correction", but Berta indicates most raters are not splitting those hairs, and instead views the Cue she files as a "rating error correction".  

No that is not quite right-

I file CUEs as a Clear and Unmistakable Error, under auspices of 5109 A. I then refer them to and enclose the decision that holds the CUE and state what legal errors they made and why they are to my detriment.

Easy as Pie.

Kanewnut's post  on M21-1MR and CUE is correct-

Broncovet -why aren't you commenting on what he said?

I will wait for you to do that.

Alex has been questioning me regarding CUE for over a year or more- and nothing is done to stop it-

CUE is not controlled by me, the regulations control CUE, whether filed in the appeal period or filed on a very old decision that was never appealed.

Of course one has to be able to read the regulations to get it.

Please opine on what Kanewnut said- re: M21-1MR.

 

 

 

 

 

Edited May 2, 2020 by Berta

[Buck52]

I guess we all should be thankful we have the right to file  CUE  to help get our deserved benefits, this is to include the widows of  deceased Veterans. ....>and no better teacher than Ms Berta.

I realize she must get tired of repeating her self here on hadit and re posting things she has posted about so many times here on hadit .

I just hope she don't get tired of it and leave  she has been a God Send for all veterans as well as the widows of veterans.  she does this all free and runs her farm and helps in her community all unconditionally .

In my opinion  as for as VA Claims go rather first time claim  or claim for increase /or EED, or a CUE Claim  Ms berta does it all  and for all her work I will be forever grateful and with all due respect  I  place this lady on the highest pedestal there is.

And I recommend that all Veterans reading this read all about what she has posted here on Hadit through out the years.

Thanks to Ms Berta and all she does here on hadit to help all of us.

You Rock  Ms Berta