Please help because I confused if my claim is CUE or supplemental claim.

[Mituna 2483]

Hello, I am new here. I read many answers and discussions from a lot of nice people here that help the others. I accept that I have to bother nice people here for my CUE/Clear and Unmistakable Error. My former representative didn't care anything; they just request VA to increase my SC knee disability (20%) and SC hearing loss (0%) every ten years but nothing...VA kept denied. That's why I try to do the research and learn by myself. I'm a veteran who served during1958-1966, and I was speedy discharge in 1966 at Ubon Base, Thailand with PAPD/Passive Aggressive personality disorder which I have no idea what it was. 

When I come back to civilian life, I have trouble with my ears, my knee and my mental condition. I didn't even know I can file for compensation benefit until 1975, one of my co-worker at work told me, so I applied for my knee which hurt from an accident during my service in Ubon, Thailand. I got 20%. Then in 1979, I filed VA benefits for the problems from my ears and nervous condition. VA approved my tinnitus 10%, hearing loss 0%, scarred pars tensa 0% and denied my nervous condition. I didn't appeal so it was final. I have 30 % since then.

In February 2019, I received my own C-files that request from VA, and I just saw the VARO made a mistake on the decision in 1979 for my nervous condition; it missed the important evidence favorable to my claim (the psychiatric examination). It was very clear that my anxiety is related to my tinnitus and hearing loss as the psychiatrist indicated, "This patient's hearing disorder is an irritating sort of stress which increases his anxiety level and results in irritability and poor temper control."  However, the VA decision didn't have any part of this exam result in the consideration; it denied my claim with "There is no relationship between the veteran's now present anxiety neurosis and the non ratable personality disorder diagnosed during service."  That's why I filed CUE/Clear and Unmistakable Error for my nervous condition or anxiety neurosis in June 2020, but VA closed it because it told me that it needed VA form 20-0995 Supplemental Claim, but I didn't send because I told VA that I want to allegation CUE not appeal, not reopen. 

In August 2020, I called VA and VSO to be sure that CUE doesn't need any form but only submit a letter with VA 21-4138 Statement to Support the Claim, and I submit them for CUE to VA again. However, VA said it still needed the VA Form 20-0995 Supplemental Claim to begin my CUE. The VA benefit specialist said it needed the form because VA didn't know what I want them to do with my claim. I believed her so I hurried to submit the VA Form 20-0995 Supplemental Claim by fax on the same day to VA. I keep checking my CUE on VA.gov but it shows "Supplemental Claim" instead of CUE!  I tried to call VA many times and I sent two inquiries to VA, but I got nothing because they couldn't answer about what happened, why it was Supplemental Claim not CUE. They told me that the VARO would call me but there was no one call. I decided to withdrawn it so I faxed my request to withdrawn the supplemental claim but it still shows on VA.gov as Supplemental Claim. I tried to withdrawn for 2 months until my wife got one person name with e-mail address, so we sent an e-mail to ask for help withdrawing and explain everything to him. Two days later, I got a phone call from VARO, and he told me that my claim was CUE. He told me that the system would not let it put CUE, so it shows as supplemental claim and he said I might need to attend an exam so VA could rate % for my benefit.  He told me not to worry, and he also gave me his telephone number at the VARO with extension. He also said he will call me the week later or I can call him, no need to wait for him to call!

Then I received two e-mails from VA secure center with the same information:

"I would like to apologize for the misinformation that you may have received. A supplemental claim, is a claim that is submitted, if you have a new and relevant
evidence in support of your claim. If you believe that a mistake was made on the prior claim, you can request a higher level review, which is VA form 20-0996. With
a higher level review, a senior rater will look over your case to see if any mistakes were made or to see if they come up with a different opinion, based on the
evidence at the time the claim was worked. With a higher level review, you cannot submit new evidence in support of the claim.

We did receive your request to withdraw your supplemental claim and followed up with a request to do so on 10/22/2020. When we submit a service request, we do
have to allow the regional office 30 days to take the action. The request to withdraw your claim was escalated further (via inquiry) on 11/24/2020 and you should
receive a call by telephone, when the inquiry is resolved. Initially the inquiry was not assigned to the regional office to be resolved, but it has been as of today."

A couple days ago, I also received a call and an e-mail for an appointment to anxiety examination, so I tried to call the man at VARO that gave me his number and extension many times, but he never picked up the phone and never called me back. I am very confused and very disappointed. I just want to ask anyone here who can help me; I would appreciate it. I want to know that VA gave me wrong information (didn't tell me the truth for some reason), correct? How to withdrawn this supplemental claim? Because I already submit the request, but VA didn't drop it. One more question, please, if I want to allegation CUE, it only needs a letter (only a letter) to ask the VARO to revise the decision in 1979 and explain to VA what is the error in the decision, and not attach any paper or any copy, correct? 

Thank you very much for your time. 

[broncovet]

I hear you.  

     IM gonna try to clarify, and help you.  

     Short version:  Send VA a copy of your doctors evidence, with a short letter, (21-4138 referencing your supplemental claim you filed)  asking to reopen the claim with new and material evidence, 38 CFR 3.156.  

      More complete version.  

      While you may do CUE "or" supplemental claim, the supplemental claim with 38 CFR 3.156 is the easier of the 2.  Example:  If I wanted a Big Mac, I could get one 4 blocks away, or I COULD get one in Boston 800 miles away.  I think I would opt for the closer one, the supplemental claim.  Again, you may succeed either way, but do you really want to go to cue in Boston?   I dont.  

     More important than my explanation is the regulation below:  There are 2 versions:  New EVIDENCE and new service records.  Note: newer versions of 3.156 show "relevant" evidence not "material" evidence.  

Quote

§ 3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

 

Supplemental claims with new evidence are easier because you "keep" the benefit of the doubt (BOD) , while CUE claims throw away BOD and have a higher standard you must meet.  

     Cue claims and 3.156 are both "all about the effective date", which is important, because you probably want back pay.  If you did not care about the effective date, just file a new claim.  

            

[broncovet]

You posted:

Quote

There is no relationship between the veteran's now present anxiety neurosis and the non ratable personality disorder diagnosed during service."  

This is a different way of saying "You dont have a nexus".  Remember the basic Caluza elements:  1.  Current diagnosis, 2 in service event and 3. nexus or doc opinion 1 and 2 are related.  

    Go back through your records and see if all these are documented.  If you have doctors notes where the doc said your anxiety nuerosis is at least as likely as not related to an event in service, then that is likely cue.  

     Dont fret too much about VA's confusion about which form to use.  All these have been revamped with Ramp, now called AMA.  You do have to make a choice, in appeals, whether or not your appeal includes new evidence.  

     If you can get a decision from your supplemental claim, then you an appeal the effective date, if va awards you benefits at the wrong effective date.  

     You need to know that there is a wide variety of levels of competence at employees at the VA.  Some would not know how to pour the urine out of a boot, if the instructions were written on the heel of the boot.  

     When the VA asks for additional information, supply it to them "even if" its already there.  

     Is there any new "relevant" evidence you can add to support your case?  The standard has changed from "new and material evidence" to new and relevant evidence.  

     Its kind of important.  "Material" means that it affects the outcome by itself.  "Relevant" is a lower bar for you to jump over, and means that this new evidence "along with other relevant evidence" is enough to swing the claim in your favor.  

      The regulations state to the effect, that, when the law changes, the Veteran is generally entitled to the more favorable of the new law or old law.  

       The law changing from "material" to "relevant", is called a liberalization law, it makes it easier for Vets to get benefits because its easier to be "relevant" than to be material.  

Edited December 13, 2020 by broncovet

[broncovet]

I think this is close, but obviously no cigar as far as VA is concerned, as far a nexus.  VA (likely) used this as a nexus to hearing loss and service connected you for the same.  

I was actually service connected for MDD secondary to hearing loss.  Are you wearing hearing aids?  

"What worked for me" was that, I was SC for hearing loss first.  (Like yourself).  I then applied for MDD (that was my diagnosis) secondary to hearing loss.  

Many years ago, VA published a manual on hearing loss.  (ITS been taken down from the internet and yours is the reason why:  The Va is ok with granting hearing loss at 0 percent, but they dont want to give depression secondary to hearing loss).

In this manual, the VA "pointed out" that the deaf and hard of hearing are most often suffer depression symptoms as a result of hearing loss.  

However, my Psychiatrist (who happened to be blind!) had done research on the hearing loss/depression link and he could easily see that with me.  So he provided a nexus of the same.  

ITS not necessary to have a nexus or diagnosis in 1979.  What you do need from service, is an "in service event" (working in loud noise environment, for example) and a CURRENT diagnosis and nexus.  

To get this, IMHO, you will need another favorable medical opinion (likely an IMO).  My VA doc provided the nexus, but many VA docs wont.  You can either find one who will, or hire your own private doc.  (IMO).  

While I do see YOUR point that this could be a nexus, its not in the format VA wants.  Its probably a great "documentation of in service event" but not so much a nexus for mental health disorder secondary to hearing loss.  ONE reason:  Your psychiatrist is "not competent" to diagnose hearing loss, this takes an audiologist and hearing test.  

My advice is to apply for a mental health disorder secondary to hearing loss.  I say mental health disorder because you do need a diagnosis and a 2020 doc may diagnose you a different way than one in 1979, as this field has changed in the past 41 years.  

Based EXCLUSIVELY on what you posted, I dont think this is CUE.  Cue error has to be undebatable, and outcome determinative.  Apply again, then fight for the effective date, if awarded via the wrong effective date.  

Berta may chime in here, but I can not see a cue.  Now, just because a CUE may not be in the evidence I have seen, there could well be other cue errors in your cfile.  I can only opine on THIS error, that its probably not cue.  You do not get benefit of the doubt with cue. 

[pacmanx1]

We did receive your request to withdraw your supplemental claim and followed up with a request to do so on 10/22/2020. When we submit a service request, we do
have to allow the regional office 30 days to take the action. The request to withdraw your claim was escalated further (via inquiry) on 11/24/2020 and you should receive a call by telephone, when the inquiry is resolved. Initially the inquiry was not assigned to the regional office to be resolved, but it has been as of today."

A couple days ago, I also received a call and an e-mail for an appointment to anxiety examination, so I tried to call the man at VARO that gave me his number and extension many times, but he never picked up the phone and never called me back. I am very confused and very disappointed. I just want to ask anyone here who can help me; I would appreciate it. I want to know that VA gave me wrong information (didn't tell me the truth for some reason), correct? How to withdrawn this supplemental claim? Because I already submit the request, but VA didn't drop it. One more question, please, if I want to allegation CUE, it only needs a letter (only a letter) to ask the VARO to revise the decision in 1979 and explain to VA what is the error in the decision, and not attach any paper or any copy, correct? 

There is a lot here and I will try to help. As for filing a CUE Claim. You are somewhat correct. Per regulation there is no standard form to fill out to request a CUE Claim but under the new AMA program VA will force all veterans to fill out and submit one of the new forms VA form 0995, 0996 or 10182. Unfortunately, there is no way around it, to have the VA review an older decision a veteran must fill out and submit one of these forms. CUE Claim versus Re-open claim, they both can award the veteran with the same benefits and effective date but wining a Re-open claim would be a lot easier than winning a CUE Claim. Even the evidence in filing a CUE Claim and a Re-open claim can be the exact evidence but the Re-open claim allows the veteran to keep his/her benefit of doubt and is a lot simpler.

There are no set standards with VARO (VETERANS AFFAIRS REGIONAL OFFICES), what one VARO will grant another may not and what one rater will approve another may not. In requesting a CUE Claim or a RE-open claim, VARO can and most likely will request a new C & P Exam. The purpose of the current C & P Exam would not only determine if the veteran should be service-connected but what the veteran’s service-connected rating would be over time. I recently won an EED( Earlier Effective Date) back to 1998 but I still had to have a recent C & P Exam.   Under 38 CFR 3.156 paragraph 4, it states: ((4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original)  Paraphrasing here that the VA has to determine by examination of records that the veteran can be awarded a particular rating percentage if the evidence of records proves that rating percentage should be warranted. So, in most claims where VA has to review a decision. VA will most likely schedule the veteran a new exam. Your claim goes back to 1979, IMHO (IN MY HUMBLE OPINION) If your claim is granted VA will want to do a FENDERSON RATING which is a rating that once it is granted, VA will grant a rating percentage and increase it over time compared to just granting a particular rating for the entire time.

You have a bigger issue, due to the fact that you have mental health issues VA may process your claim.  The bigger issue is that you ask VA to withdrawal your claim for mental health. Anytime a veteran file a withdrawal pretty much stops all action and your request for claimed benefit stops. (IN OTHER WORDS, VA WOULD STOP PROCESSING YOUR MENTAL HEALTH CLAIM, THIS HAS NOTHING TO DO WITH YOUR ALREADY SERVICE-CONNECTED CONDITIONS AND OR RATINGS).

I know and fully understand that you are trying to get VA to review a rating decision that was rated back in 1979 but from my experience they will not do it without one of the new forms. You can disagree but they will not process your claim without them. I currently have a pending CUE claim and a pending Re-open claim going back to 1998 and I was told I must use one of these forms even though these forms do not apply to my rating decision that was back in 2009.

VA decision reviews and appeals

The legacy VA appeals process has changed to the decision review process. If you disagree with a VA decision dated on or after February 19, 2019, you can choose from 3 decision review options (Supplemental Claim, Higher-Level Review, or Board Appeal) to continue your case. If you aren’t satisfied with the results of the first option you choose, you can try another eligible option.

VA Decision Reviews And Appeals | Veterans Affairs

 

[pacmanx1]

The way the new system is that you have to word your request in a certain way. Yes you can use either of the new forms and inform VA what decision you have a disagreement with and you can state that you request a re-open claim or the fact that you are requesting a CUE Claim. They will put in their system that it is a supplemental claim but you can add your Cue argument/documents as additional pages. I argued with three separate coaches that my 2009 claim was way before the February 2019 change but I was told that if I did not fill out one of the new forms they could not process my request.  Whenever I file a CUE Claim, I simultaneously file a claim to re-open under the 38 CFR 3.156. I want to make sure that I cover everything.  Cue Claims criteria is so screwed up and the fact that it states that it has to be undebatable is where a lot of veteran lose their Cue Claim where as VA did deny my CUE Claim but granted my re-open claim and awarded the same EED.

28 minutes ago, Mituna 2483 said:

If I understand correctly, does it mean: 1. Even it's a CUE, VA still needs a form? 2. Even it's a CUE, VA still needs veterans to attend a C&P exam for reviewing if I still have anxiety before it provides a decision, correct?

1. Under the new system yes, VA will not accept any other way. The VA is trying to get away from all legacy claims. 2. Yes, you are asking VA to pay you compensation and they need to determine your rating over the entire time. As stated in my earlier post, the VA must determine what your rating should have been in 1979  and all the way up to the present time. If granted, the VA will most likely try to grant a FENDERSON Rating compared to just granting you a specific rating for the entire time period so they will most like send you to a new C & P Exam.

The VA is not veterans friendly and as stated be forewarned that even though they should process your claim they may send you a letter that they accept your claim withdrawal. I have seen it before but unfortunately, you are going to have to wait for your decision.

 

[pacmanx1]

 

9 hours ago, Mituna 2483 said:

I think re-open claim might be a better way because I can add new and relevant evidences and I think it still can get the benefit of doubt too. May I ask, please. Re-opened claim needs VA form 20-0995 supplemental claim, correct?

Yes, that would be the correct form for you to use because you want to be able to add more evidence. Since you sated that you already filled this form out the unfortunate thing to do now is to wait for a VA decision. As stated above, I have seen VA do some crazy things and you really don't know what they will do until they do it and you get a written letter. It could actually go both ways; they process and grant your claim, or they process and accept your withdrawal letter. They key thing here is that there is no time limit in filing a re-open claim and or a CUE claim if you choose to.