Does CUE apply to VA Life Insurance decisions?

[Vync]

Today, I received a call from a VA Insurance Center supervisor regarding a HLR/CUE I submitted earlier this year. Despite one of their departmental attorneys discussing it with me in May for more than two hours over the phone, I never received a decision letter. They could see where the my documentation was received, but for "unknown reasons" a task was never generated to work it. We briefly discussed the details.

They said they were familiar with CUE, but said it applies to compensation claims, not life insurance decisions. They said there was no requirement for them to fill out the long-form decision letter that responds in detail to each of the points I raised in my submission. I explained I needed that in order to properly formulate an appeal to the BVA.

I even found a BVA decision regarding S-DVI which mentioned CUE, so it must apply there too: https://www.va.gov/vetapp04/files2/0414424.txt

 

[broncovet]

Unfortunately, VA does not comply with 38 CFR 3.103..and gets away with it.  Its called a "deemed denial".  You may have to stir the fir.  

If you look at the BVA website (Chairmans report), you will see that "not all appeals" are for comepensation..they are for other things, too.  https://www.bva.va.gov/Chairman_Annual_Rpts.asp

In 2019, there were just 2 allowed, 2 denied, and 10 remanded, for insurance.  You can read it on page 32.  

If the insurance appeal was within 12 months, that is the time to appeal it.  

[Berta]

I agree but we do not have the details on this situation- why they denied.

I prepared a CUE for my daughter who signed and sent it to VA Edu  (DEA)

They corrected their Major DEA error in 3 weeks. It was not a disability claim issue or decision.

Also as part of a current CUE have pending I referred to some phone calls I got from the Director of my VA, which were clear and unmistakable errors as to the crap she was trying to sell me. She obviously did not have a clue on the VA's definition of Permanency regarding my husband's Section 1151 stroke, which many VA doctor, and even a former VA Secretary had deemed as a total and Permanent disability....and Voc Rehab, etc -and other evidence I sent them clearly stated.P & T.-which some VSO called me around th same time  and verified every piece of this evidence was with the VARO....

It was never a factor in my husband's posthumous award for 100% P & T , up from 30 %.SC PTSD.

Death make every 100% total disability Permanent at death- except if the VA suddenly found a "cure",or some medical  evidence of a lower rating and I asked the director what "cure" did my husband receive from the VA= the stroke was found as contributing to his death and the VACO review found his lack of proper treatment for it and the other malpracticed issues as indefenseable issues for VA to try to defend, if further litigation ensued.

I feel a CUE can be filed on just about anything that is a legal error based on established VA case law and regulations.

I regret I didn't tape those phone calls.Even without the VA callers permissions

But I bet VA has a tape recording of them.

Her calls ( I cannot tape calls here in NY without permissions of the other party) are borne out by the ridiculous decision I got, enclosed with the formal CUE , as also containing evidence of this clear and unmistakable error.

 

Edited July 16, 2020 by Berta

[Vync]

@Berta I really appreciate your feedback. If I am successful, this could result in the VA potentially refunding life insurance premiums and reversing denials to other veterans who are totally disabled, gainfully employed, and submitted a timely application.

In brief, after becoming 100% P&T, I applied for S-DVI life insurance waiver, but was denied because I was gainfully employed. After seeing several similar topics appear last year, I began digging.

I asked the VA insurance center where it said that. They referred me to internal web sites, pamphlets, National Service Life Insurance, and even the S-DVI application form. They could not tell me where it says that in US Code or 38 CFR. 

They sent me a letter which reiterated the waiver denial, but cited a few entries US Code or 38 CFR, but none of them said that.

After more research, I found 38 CFR 6.121, 38 CFR 8.20 and 8.21 used to say that, but were removed in 1996 after the Paperwork Reduction Act of 1995 went into effect. The definition is now in M29-1 Chapter 31.01, their version of M21-1. The definition for totally disabled still existed 38 CFR 3.340 as a regulation, which I felt carried more weight than the M29-1 rule/policy.

Of the 70 federal court rulings I found that mentioned US Code 1912, only five involved the waiver of premiums due to being gainfully employed when submitting a timely application. All five found in favor for veterans, some posthumously. I can post my notes and links to the rulings if you want to read them. They blast the VA pretty badly.

The HLR was submitted to contest the recent denial letter. The CUE was submitted to contest the insurance waiver denial from years ago.

A VA attorney called me to say that my argument was very compelling, but explained different regulations apply either globally or specifically across different VA business units. They said 38 CFR 3.340 applies to compensation only, but for life insurance totally disabled was defined differently in M29-1 Chapter 31.01, mirrored the definition in the civilian world (i.e. art), and carried the weight of law.

They were supposed to send me a decision letter, but never did.

 

 

[Berta]

So that issue is still open? how long has it been?

Any info/links  you can post here might help other vets in the same predicament.

 

[Vync]

2 hours ago, Berta said:

So that issue is still open? how long has it been?

Any info/links  you can post here might help other vets in the same predicament.

 

I made a blog entry which includes the federal case rulings: https://casetext.com/case/sauer-v-us

An attorney from the insurance center called me today. She was very nice and patient while we talked for about two more hours.

For unknown reasons, the insurance center thought that my WH VA Hotline question being answered also resolved my CUE motion. They sent the 119 response back to the WH VA team, deemed my CUE closed, and didn't even get a decision letter. I had to explain that my CUE motion is still active until I receive a decision letter.

Apparently, not all laws, regulations, and M21-1 policies/rules apply because they fall under a different branch of the VA.

They said I would probably just get a short form decision letter because CUEs are not worked in the same fashion as on the compensation side. There will be no detailed response to each of the points of contention I raised. They will simply point to M29-1 Chapter 16, paragraph 1. In effect, that rule-level item would take precedent over a regulation because of how the law works.

They also asked why I didn't just go ahead and submit my BVA appeal. I explained I have been to the BVA numerous times before and need to know how to respond specifically to the CUE denial (when it arrives).

 

[broncovet]

Correct.  You need a written denial to be able to appeal it to the BVA.  

Best would have been if you got a letter denying waiver of premium.  That is what this is about, the way I see it:  Waiver of premium.  

You can buy insurance.  You dont have to buy insurance from the VA.  They have "guarnteed issue" life insurance if you have health reasons you can not qualify for "regular" life insurance.  The guaranteed issue is generally much more expensive.  

But, what you want is issue your insurance and get waiver of premiums.  (premiums paid by the VA). I get that.  

I have the VA life insurance, with the waiver of premiums.  Its basically worth 10,000, as I will explain.  

If you have the insurance and die, your spouse (or other beneficiary, as you designate), will get 10,000.  

If you live, then you can eventually (after about 20 years), cash in the policy yourself, for 10,000 dollars.  I looked mine up.  

I have a 10,000 policy, with waiver of premiums with VA since 2007 (no I was not working in 2007).  I could cash my policy in, today, for about $5078.  In 2027 (mine is a 20 pay life), I could cash it for 10,000 cash.  I probably will do that (cash it in 2027).  The reason is I can invest that 10,000 and leave it to my spouse, and it will grow.  However, if I keep it in life insurance, it wont grow after 2027.  I may call them and ask them that "for sure", but I dont think the cash value will go above 10,000.