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.

[Buck52]

I would have to say   Veterans medical records are the most important of all when it comes to the VA decision makers. and help proving what we claim. without these records  most claims would be denied.

finding a lost medical records is a veteran  best friend

so all Veterans dig deep for those records  and keep on digging..

you will be surprised as to what you may find or come up with.

[Buck52]

Ms Berta quoted

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

My best answer

Of course not. we all can agree to disagree while showing respect to each other.

Edited May 2, 2020 by Buck52

[broncovet]

Berta I did not comment on Kanewnut's post  on M21-1MR because Im not really that familiar with M21-1MR, and Im not really qualifed to make an opinion on it.  Dont get me wrong..Im all for Veterans increasing their knowledge and certainly admire anyone interested in delving into M21, even tho I have no desire to do so myself.

A search of CAVC cases with "M21" gave me 880 results.  

A search of CAVC cases with "rating error correction" or "ratings error correction" netted zero results.  

A search of "Clear Unmistakbale Error" netted me over 4000 results.  

Based on this, it appears that "rating error corrections" are not being appealed but CUE's are.     For that reason it would appear that Berta's term of "CUE" is more highly regarded than "ratings error correction"...even if the results are the same.  

While I loathe to "take sides here", it would appear that the CAVC "more highly regards" the term CUE, as opposed to "rating error correction".  

As I may have mentioned, it really does not matter what I think, it matters what the decision maker thinks, and the decision makers seem to gravitate toward the term "CUE" as opposed to "rating error correction".

Edited May 2, 2020 by broncovet

[Buck52]

brocovet taking sides is beside the point here.

We all need to stop dragging this out no reasons to   the point has been made here and were all better off to just move on.

And that is helping these Veterans that come here for help and advice.

[FormerMember]

    An open letter to the readership of Hadit.com:   

     I always prefer to respectfully disagree rather than attack. Semantics are ambiguous at best. I find it odd that BroncoVet has searched "ratings error correction" and cannot find it. Perhaps VA raters think they are above error. I included the exact quote from the Rosinski v. Shulkin decision in the post I put up to dispel any ambiguity on the term. You can read that decision here:  http://www.uscourts.cavc.gov/documents/RosinskiDJ_17-1117.pdf

     Sadly, some of us disagree purely for the reason that they consider themselves correct and all others less schooled in VA law. I perform VA law. I do not "practice" it. I do it successfully. I have never lost a claim yet. I guess I'm lucky. I have one that might be characterized as denied but I have appealed it  to the CAVC. You can see that case simply by going to the Docket Search section of the CAVC and entering 19-7301 in the search bar. I have helped Mr. Long for seven long years-including getting him his long-deserved Purple Heart and CIB. I even won him a CUE back to 1970 for a muscle group rating mistake during the pendency of his appeal. I continue to fight for him just as I have for quite a few of you members. I have fought and won more CUEs than Ms. Simmons will ever attempt in her lifetime just in the last 4 years alone. I hope to continue to do that until I punch out.

     All legal precedence I read about CUE describes it as a "finally decided claim"-i.e. unappealable. The key words here  are "finally decided claim" as in expired, dead or otherwise unable to resuscitate. A recent, incorrectly decided claim is still viable and capable of being fixed. Is it a CUE? Yes. Do you have to file a new claim to fix it? No.   A Motion to Revise (MTR) is the only can opener available to most of us for a final claim. I don't write statute or regulation. I work within that corral. I interpret VA law using many tools-including the VBM authored by NVLSP and published by LexisNexis. I buy a new manual every year.   I go to every NOVA conference to obtain the most up to date legal interpretations of all VA subjects. In point of fact, I lose my accreditation if I don't obtain a certain number of continuing legal education hours (CLEs). To my knowledge, I have never met or been introduced to Ms. Simmons at one of these conferences. I have never perused the OGC list of accredited representatives to ascertain if Ms. Simmons is accredited. She very well may be. I spend, conservatively, over $10,000 per year staying abreast of how to do this.  

     I think the idea of attacking me about my legal qualifications is hilarious. Here is my data free to all who ask. It is on  the OGC accreditation site and at NOVA. I don't hide behind a nickname or a pseudonym. 

 Gordon A. Graham

VA nonattorney practitioner #39029 POA Code E1P

Accredited to practice Veterans Benefits Law

Admitted to the CAVC Bar (2018)

Member National Organization of Veterans Advocates (NOVA) (2015)

 

Office: 14910 125th St. NW

Gig Harbor, WA 98329

(253) 313-5377

 

      But remember, in order to attack my qualifications or irresponsible representation of you as a Veteran before the VA, you must have something called " legal standing". Standing means I represent you or have in the past. Ergo, if I have not represented you, you cannot complain and say I caused you (or another Veteran) to lose a claim. Nor can you allege that my advice is flawed. Fortunately we live in America and we enjoy the fruits of free speech. It seems my esteemed fellow Hadit elder is deficient in her comprehension of the First Amendment. Just as Ms. Simmons is free to discourse on what she defines or perceives as CUE, so too am I permitted to do so. As I have never represented Ms. Simmons, I fail to understand why she would choose to attack me or my professional qualifications. I have never had a Veteran client complain about my representation to the OGC. She is free to do so, but sadly it will fall on deaf ears. 

     The VA Office of General Counsel's Accreditation section (014D), polices us and makes us adhere to the controlling regulations upon threat of expulsion. These can be found at §§14.628-14.636. Nowhere in the regulations does it discuss the offering of advice to a non-client as being prohibited by law. Ms. Simmons reads that which is quite simply not there into the Secretary's regulations. Chevron Deference grants the Secretary legal rights to interpret his own regulations absent any legal artifices not promulgated by Congress. Ms. Simmons is not entitled to Chevron deference anymore than I am. Like BroncoVet, I believe we can all live under one roof here and get along. Whether a Hadit member has a finally decided claim or a live one, the avenue for correcting it is there regardless of what you call it. I use the most expedient method to cure the fault that will result in the most money in my client's pocket-not mine. BroncoVet has sat at  my table and dined with me. He, of all among you reading this, knows I do not need to prolong any Veteran's claims in hopes of reaping more money. Seriously, I know it sounds insane but I do not need the money.  I do this solely for justice for all of you who lack a voice. Ego does not enter in-nor should it ever. 

I offer my clients a product-good legal representation. If Ms. Simmons continues to attack me or damage my professional reputation, she, of all people, should know I am free to seek legal redress for defamation of character. Recently, I was informed by her on this board that she was in contact with her attorney to prosecute me for some alleged infraction. To date, I have not heard from her counsel. I have abstained from reciprocating. We both have one job-you, the Veteran. This venue to help Veterans is an extremely valuable asset. Everyone has an opinion and should respect the opinions of others. Sometimes we disagree. I stand on my unblemished record. No two practitioners can ever agree on anything. Here, it is not two practitioners but only one. I have no desire to attack Ms. Simmons-either metaphorically, verbally or legally. The OGC declines to prohibit VetComp&Pen and similar VA help sites who charge 40% of the winnings for an IMO. Let that sink in. VA won't even defend us accredited litigators from pseudo wannabe VA help sites who illegally represent you for money. 

I beg Ms. Simmons to cease and desist from this tempest in a teapot and politely agree to disagree on the definition of a legal term. You members deserve better.  

Very Respectfully,

Alex sends.

Edited May 2, 2020 by asknod

[Berta]

I suggest that you actually read 38 C.F.R., 14.632 and each of the 11 points they make. 

38 CFR 14.632 (a) and (b) are only part of it- --      read (c) and (d).

https://www.va.gov/OGC/docs/Accred/StandardsofConduct.pdf

It is the criteria I am using to shape my complaint.

The OGC-VA took my last complaint on a state vet org here in NY very seriously.

Their director was canned immediately and I am thrilled with what happened to the vet reps I gave evidence about.

None of them can ever hurt veterans or widows of veterans again with piss poor advice. 

BTW- Where is your self serving rebuttal to Kanewnut?  His advice on CUE  was as correct as well as mine was.

Because it was, like mine, based on established VA case law. He should be a lawyer. 

 

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