CUE or Request Reinstalation of Appeals

[Lolo Square Pants]

Request to Reinstallation for Sleep Apnea and Low back condition claims

 

Back in January 2021, I received via mail a CD containing information to be used before the Board of Veteran Affairs for the MDD condition. I discovered VFW submitted a document on Jul/2011 where he withdraws the claims for Sleep Apnea and Low Back condition. This was the first time I learned about this document.

For the claim of Sleep Apnea, I hand-delivered favorable IMO to the Hearing officer in 2010 and at the time they had also an IMO for the Low Back Condition(2008) along with a full medical report from the same doctor.

After reviewing the CD and my paperwork, I asked the VA via phone on Feb/2021 about communications between July and September 2011. The VA representative emailed me a document dated 8/1/2011(attached) with multiple issues on it and an indication of; “We also withdrew all other issues on appeal as per your Veterans of Foreign Veterans letter dated and received July 2011".

I kept working on the claims throughout the years; these were done in two different RO and to all effects VA indicated that they were working on these claims as presented in their communications on Feb/2012 and Jun/2012.

Interestingly, for the latter communications, VA does not indicate a withdrawal of appeals nor that my claim is “reopened”. Finally, on Apr/2013, VA use different wording like “denied the reopening” since “Evidence no show event, Evidence not new. Claim not reopened. Not Substantive”. While still, VA did not evaluate IMO on the record.

Out of frustration, I did not further pursue these claims; until I received the CD in January 2021, and realize that my claims for Sleep Apnea and Low back claims were withdrawn without my consent in 2011.

Significantly, the VFW letter offers a conditional appeal, where indicates: (1) “As longer his appeals for increase in the other conditions…”, (2) “He would be satisfied with the decision made,” (3) “This withdraw does not mean…” Additionally, there’s an undated additional handwritten note in the printed proposal that indicated another “conversation” with the veteran.

As I learned under Warren v. McDonald, docket no. 15-0641 (Sep 14, 2016) it is, held: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”

I tried to get a hold of the VFW trough 12 emails (for 2 months) and multiples calls without success. I did change the VSO. Also, I wrote a letter detailing the events to the VA. Now the VA wants the request in a Form (20-0995). This form explicitly indicates that is to be used for “New and relevant evidence to submit for VA to consider”.

I request that my claims of Sleep Apnea (2008) and Low back(2005) be reinstated at their original claim date since they were worked continuously since their inception and there was evidence that were not evaluated. As today My sleep apnea is worse indicated in a VA Study in 2019 and had Spinal Fusion in Kentucky (2015).

 

I appreciate any help you can provide.

 

[Buck52]

Lolo Square Pants

Welcome to Hadit

I moved your post over to 

VA Disability Compensation Benefits Claims Research Forum.

It will get more feedback.

[ShrekTheTank]

In my opinion, you need to stop waiting for them to do the work.  I would go to your local VSO who probably works for the state and get them to help you get the ball rolling again.  The longer you wait the harder it is going to be.

Or you can go to VA.gov and do it yourself, it does not matter.  Just get it moving!

[Berta]

Have you contacted the BVA Ombudsman to verify the "conditional"appeal had been with drawn?

bvaombudsman@va.gov

Tell them briefly what happened. Cite Warren V MacDonald.

"Interestingly, for the latter communications, VA does not indicate a withdrawal of appeals nor that my claim is “reopened”. Finally, on Apr/2013, VA use different wording like “denied the reopening” since “Evidence no show event, Evidence not new. Claim not reopened. Not Substantive”. While still, VA did not evaluate IMO on the record."

If the IMO was probative and if the VA actually had it ( do you have proof that you sent it to them,) then that would hold a CUE on their 2013 letter.

Violation of 38 CFR 4.6.

I have noticed lately at BVA that it seemed more then usual,compared to the past years,withdrawals of appeals are occurring- 

But I am surprised at how your situation has evolved. 

Personally I would re -open with all the evidence possible, then if that re- open is successful, I would CUE the past denials, if they fully fit into the CUE criteria and then see if I could sue the VFW rep or whoever  caused a loss of proper compensation due to their withdrawal of the appeal.

Dont let anyone tell you that you cannot sue a vet rep. I did. It was not for $$$ however, it was for a change in the way this vet org treated widows of Vietnam veterans. They changed.

Long ago a TDIU vet sued a vet rep and he won cash consistent with the amount the rep's poor advice had cost him in retro.

I am also wondering if someone I know got sued recently for giving widows the wrong DIC  info. I sent them the specific DIC regulations they were ignoring but after knowing them for over a decade, they never responded to me again. The error they had made might have cost widows a lot of retro, that would be unrecoverable through the VA, and only recovered by a lawsuit. 

Everything you need to know about CUE is here in the CUE forum.

I wonder if the RO, in your case, ever sent you the Proper VCAA notice or 5103 waiver. The director of a well now NY vet org was removed suddenly for the error the VA made in one of my claims ,due to an illegal VCAA letter. Aother rep was demoted from handling claims, and the dope who ran this outfil locally quit. quit.

I had complained to the OGC and to his boss- the Governor of NY.

It was part of a BVA case appeal I had. The BVA agreed that my VCAA letter had not been proper at all, but considered that issue moot because they granted the claim anyhow. I made sure right away that the lawyer for the above NY state POA knew I won , since it seemed  they had done  all they could to prevent my claim from succeeding.

 

It was the most important claim I ever filed.

 

 

 

 

 

 

 

[Berta]

Dont waste your time with local VFW POAs etc, their National Commander ,Hal Roach, can be contacted here:

https://www.vfw.org/contact-us

You can use the email form if you want but 

I suggest sending him a letter and copy of it to all :

 

VFW National Headquarters

406 W. 34th Street
Kansas City, Missouri 64111
816.756.3390
 

VFW Washington Office

200 Maryland Ave., N.E.
Washington, D.C. 20002
202.543.2239

  

VFW Member Service Center

For question on membership or dues, call
1.833.VFW.VETS
(1.833.839.8387)

(and send them a copy of the withdrawal info that you found in your C file.)

[Berta]

To add, 

https://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part1/ch05/M21-1I_5_SecA.docx

Under part 3, it states that any vet rep, VSO , or claimant themselves can withdraw an appeal -but it must confirm to 38 CFR 20.204 (c).

But it can be reinstated if that request is received within the remaining appeal period.

If you were completely unaware of the withdrawal within the appeal period, how could you re instate it? 

Did the letter that reveals the withdrawal contain your rights in that respect?

I brought up the VCAA because it might have had bearing to your case-It began in 2000 and then changed to the 5103 waiver, and now I dont think the VA uses it at all. If they sent you a VCAA notice or 51903 waiver the aiver had to be filled out and sent back to the VA.

Your C file will reveal if they denied your rights if the VCAA was applicable at time of your claims and appeal.

This is the amended 38 CFR 20.204 (c)

https://www.federalregister.gov/documents/2003/03/19/03-6611/board-of-veterans-appeals-rules-of-practice-appeal-withdrawal

Something seems wrong here, but I think you mentioned you have a new POA  or will be getting one and they will be able to decifer from your C file,  what actually went on.

But do all you can to support the reopened claim, and you don't have to follow my aggressive advice above-

it just seems to be that your rights were violated, and many of us widows get tenacious about that kind of crap-

just ask Beverly Nehmer - every AO veteran knows her case began the Nehmer Court Order in 1991, that is still in affect.