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. 

[Mituna 2483]

2 hours ago, pacmanx1 said:

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

 

 

Thank you for your help.  

After I tried to withdrawn the supplemental claim for my anxiety because I thought it was not CUE, the public contact coach of VA called me and informed me that it's CUE not supplemental claim. He said the system didn't let him put CUE, there was no option for CUE that's why it shows as supplemental claim, so I guessed it means VA didn't withdrawn my supplemental claim. I see it's still shows on my account on VA.gov as supplemental claim, so I'm not sure it's CUE (like I want/as he informed me) or it's supplemental claim, and I also get an examination appointment with LHI (by VA) for next month. That's why it was confused. 

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?

[Mituna 2483]

2 hours ago, pacmanx1 said:

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.

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.

 

Thank you for your kindly reply.

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?

 

[Mituna 2483]

1 hour ago, pacmanx1 said:

 

Buck, what some veterans fully do not understand is not only can you request that VA re-open a denied claim, but a veteran can also ask VA to re-open a granted claim if, and I say if they have medical records that prove that they should have received an EED per their evidence in their file folder (C-File). This is how I won my CUE claim and my Un-adjudicated 1998 effective date. VA granted my Cue claim back to 2004 and I file an NOD. BVA reviewed my records and found my earlier NOD that was never reviewed or processed and granted my correct effective date. So, I know that it is possible, it just depends on the evidence of record and the regulation at the time of the original decision.  Trying my best to give veterans every available option in informing them to file for both the re-open claim and the CUE claim is a simultaneous attack to get a correct effective date. So, yes, a veteran could even file a timely NOD and a CUE claim at the same time depending on the evidence in his/he records at the time of the original claim.

I prefer to inform veterans to either file a timely NOD or a re-open claim because even though I won my CUE claim, I do not like the part where it says that a CUE claim must be undebatable. Why in the H LL would the VA put that clause in the criteria only to cause some veterans to lose their claims.  Re-open claims and filing a timely NOD do not have this clause and is a lot easier to win. They both can award the veteran the exact benefits if the evidence is warrants it.

Also, when the VA makes a decision, and that decision does not include medical records that are in the file there is no way a veteran will know if those records were used so the veteran should challenge the decision and make sure those documents were considered. In my 1998 case, I had VAMC medical records within my C-File and VA stated they reviewed my entire file but if that was the case how did they not grant my claim earlier. The records were not actually considered and my BVA grant proved it. 

Thank you Buck52  and  pacmanx1

In 1979, I didn't have chance to see my C&P psychiatric examination. Only received the denying from VA, and my representative didn't say anything. Result in did nothing so it's final. My fault that I never doubt in anything, I believed in everything VA told me! I never questions too. I just thought why VA granted my tinnitus 10%, hearing loss 0% and scarred par tensa (otitis media) 0%, but denied my nervous condition.

I filed compensation benefits for them at the same time in 1979. If VA approved my hearing disorder, it should approve my nervous condition too because the psychiatrist conclusion as I attached here, "This patient's hearing disorder is an irritating sort of stress which increases his anxiety level and results in irritability and poor temper control". He diagnosed me with anxiety neurosis.  However, VA decision denied my claim: "There is no relationship between the veteran's now present anxiety neurosis and non ratable personality disorder diagnosed during service."

I just thought that the 1979 decision was wrong because instead of considering the psychiatric examination (important evidence) that my anxiety related to my hearing disorder/disabilities, but VA took PAPD/Passive Aggressive personality disorder (I was diagnosed since service in 1966) to consider and put to be a reason to deny me. I try to think and find that VA made a mistake denying my claim because it didn't consider the psychiatric examination to be part of the decision and this evidence is favorable to my anxiety claim. This is the reason that I try to file CUE for the 1979 decision that denied my anxiety. One thing, the psychiatrist didn't report or record anything about my PAPD in the exam. He didn't doubt anything about my PAPD. There's nowhere in the exam that included PAPD. Not a word. That's why it makes me think this is a fact that error. 

I even find in the DSMI (1952) that anxiety reaction (psychoneurotic) was superimposed upon PAPD. Anxiety is not PAPD, and anxiety is a disability by law, so VA should granted my claim instead of excuse of "There is no relationship between the veteran's now present anxiety neurosis and non ratable personality disorder diagnosed during service." If VA takes a look in the DSMI, VA should get it because VA use the DSM Manual as its guideline for rating purpose.  I'm sorry to say these things that I found really upset me. I lost so much chances with my conditions for my jobs, family relationships and my self-confidence as you guys may know how each veterans experience.  

Edited December 15, 2020 by Mituna 2483