NO CUE FOR YOU, OR YOU, OR YOU

[pacmanx1]

When I first heard of the AMA Reviews, I thought the VA was trying to get around paying large back pay CUE/EED Claims. I knew it, I knew it. 

Can someone please help my brain out and tell me that I am wrong? It appears that a veteran should not file an EED/CUE claim with a supplemental or a supplemental form requesting an EED or a rating percentage beyond one year because these regulations are against the claim. It appears that the VA is trying to get around paying veterans CUE/EED awards that has a potential large retro payment.  Example: Veteran was rated and denied claim for service-connection on January 1, 1990, but veteran finally found copies of records June 15, 2021. If the veteran files a supplemental claim or an HLR claim the VA will deny the veteran’s claim based on these regulations. The Veteran can not file a BVA Appeal Direct Review because the veteran original decision is not within the one-year of the AMA Review. So, is the VA trying their best to get around paying large retro under the new AMA Reviews?

 

3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.

Quote

For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.

3.2500 Review of decisions.

(2) More than one year after notice of a decision. A claimant may change the review option selected to a supplemental claim after expiration of one-year following the date on which VA issued a notice of decision on an issue by following the procedure specified in paragraph (e)(1) of this section.

Quote

Where VA receives the supplemental claim application after expiration of the one-year period, continuous pursuit of the claim will be broken and VA will apply the effective date provisions under paragraph (h)(2) of this section,

unless VA grants an extension of the one-year period for good cause shown under § 3.109(b) and the supplemental claim application is received within the extension period allowed.

(h) Effective dates -

(2) Supplemental claims received more than one year after notice of decision. Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issues notice of a decision or the Board of Veterans' Appeals issued notice of a decision,

Quote

the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.

Now using my scenario: Example: Veteran was rated and denied claim for service-connection on January 1, 1990, but veteran finally found copies of records June 15, 2021. The only way the veteran can get his/her corrected benefits are either to file a reopen claim or the file a CUE using a VA form 526EZ or a VA Form 4138 Statement In Support and that is if the VA accepts their claim, but the local Regional Office may still deny the veterans claim.

 

This is not Burger King, and the VA can’t have it their way. If the VA will not allow an EED/CUE claim after the AMA Review System and the veteran has legitimate evidence, then the VA will have to accept claims for EED/CUE as reopen claims and or CUE Statement In Support Claims. I know that the VA is trying to tell veterans that they cannot file VA Form 526EZ and VA Form 4138 Statement In Support of (Reopen or CUE Claim). It seems that after February 2019 that some VA has been telling veterans that they cannot fill out these forms. As Far as I know these forms are still acceptable, but the VA may try to discontinue them, Since there is no time limit on reopening a claim or filing a CUE claim this is the only way the veteran can get his/her benefits.

 

Edited November 7, 2021 by pacmanx1

[broncovet]

Good point.  Yes, Va regulations "hurt my head", too.  Alex said that you need to file things on MULTIPLE forms, because VA employees difer on which form to use:

Such as a 526 or supplemental claim form.  So, inevitably, no matter which form you use, VA can send it back with the wrong form.  

You see, Veterans were not frustrated enough in the past with regulations, so they had to make them yet more difficult.  Its the VA way.  

VA employees want to think "they are smarter than Veterans", and that we can not possibly read either, so you have to go to training seminars put on by VA employees to explain how to misinterpret regulations, "just in case" some VA employee may think he is supposed to give the Veteran the "benefit of the doubt".  

I had pretty much figured this out earlier.  As an example, if the Veteran applied for benefits for PTSD and he was instead diagnosed with MDD, the VA policy was to deny and make you start over using the "correct" diagnosis.  

So, I told Vets not to diagnose their own illnesses:  Let the doc do that.  Instead of saying, "I want to apply for PTSD" you say, instead, "I have a mental disorder and Im not sure which one, and I want to apply for benefits".  

You see, the regulations do not require a Veteran know his own diagnosis.  "My right knee hurts" is enough.  YOu dont have to try to figure out if its patello femora syndrome, bursitis, arthritis, or fibromyalgia.  You just apply for a condition of the knee..as a doctor may so diagnose.  

While VA isnt supposed to deny you for PTSD, then when you reapply for MDD, to make you start over again.  Ahh, but delays are good for VA..they have a financial incentive to delay you as long as possible.  

I wish I could do that with MY bills.  If I "delay" the IRS they charge me interest and penalties.  However, if Va delays US, we pay the interest and penalty of not having our money for decades, then buying stuff with inflated dollars that are worth much less than they were 10 years ago.  And, there is the VA "bonus"...you may well die before they get your claim approved.  "Unless" your family member knows to file a substitute of claimant, under VA's set time limits, your claim dies with you.  

So, the VA wins the lottery every time a claimant ,  in some stage of benefits application or appeals,  dies.  The family loses.  No benefit of the doubt there, why this poor grieving widow "should have known" she had to promptly file a substitution of claimant, that is where she made her mistake.  (according to VA).  

Each and every spouse of Veterans should know this before their spouse passes.  They also need to know all about DIC..else the widow (or widower!) loses.  

Dont expect your VSO to know anything about DIC.  You VSO probably thinks DIC is the misspelling of a part of male anatomy.  

[pwrslm]

CFR on the Mission Act did not void USC on CUE. USC is the top and the CFR cannot contradict it. So the enactment that you quoted does not apply when it comes to CUE because congress did not delete USC @5109A. CUE is a legal challenge of a decision. The direct challenge to the Secretary is not intended to be a new or supplemental claim.

38 U.S. Code § 5109A - Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.

(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.

(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)

[JKWilliamsSr]

This info comes in handy and I will definitely file both forms when I file for  CUE.  I will break down my issues and try to keep them really brief.  I will only list the disabilities I find relevant to what I believe is a cue.  In 2018 I got a copy of my C-file and that is how I found the myriad of VA errors. 

I separated 1996 in on the claim form I put back, knee, finger and sinus conditions in my claims.   I am baffled as to why I did not make a foot claim.  My entrance physical had normal feet and my exit physical had Pes Planus which was confirmed by X-Rays.  So I will just go with ignorance.  I got service connection for Knees, finger and sinus at 0%.    My back was denied because while the VA concedes I was seen numerous times for back issues there was no diagnosis of a chronic condition.  Odd because my SMR's have a diagnosis of Lumbar strain in there twice.  (Had to edit from lumbosacral to lumbar)

In 2002 I filed claims for knees, back and foot conditions.   My back was denied because I did not provide new and material evidence.  The VA required treatment since service for foot issues.  I did not have any.  I could not afford going to any doctor let alone a foot doctor.  I did not have medical insurance.  I would later learn.....like 2009 later that I could go to the VA and be treated for anything and my copay would have been based on my income.   If only I knew.  The rating decision for my foot conditions state that service medical records show no findings of claimed disability. 

In 2009 I filed again for my knee, back and foot disabilities.  They were both denied because per the VA I did not submit new and material evidence.  For my foot they continue the statement that the condition was not caused by service.  For the back they now say there is not record of treatment in service for a back condition.   This is contradictory to the 1996 decision. 

I filed a NOD to the 2009 decision and the Statement of Case says that: For my both my back and foot claims i failed to show for a 2002 appointment.  This is not true. I did however miss the appointment for my knees.  What makes that moot is in the 2009 decision I received an increase both knees and that is the appointment I missed in 2002.  The VA never scheduled back and foot exams and that is documented in the C-File.   

In 2019 I got the VA to reopen my foot claim by sending them copies of the SMR's that were in my C-File.   They lowballed me and gave me 10%.   I also got them to reopen my back claim by submitted and IME but they still denied me.  No rationale explaining why.  That is one of the claims currently at the BVA. 

I am finally at 50% for my feet.  Going to file for a EED.  Waiting for my back claim to be finished at the BVA and hope to file the both at the same time.   I think I have a legit CUE for my feet.  Not so sure about the back since the issues is the VA claims there is no diagnosis.  Not sure how that will fly. 

 

Edited November 8, 2021 by JKWilliamsSr

[pacmanx1]

Quote

CFR on the Mission Act did not void USC on CUE. USC is the top and the CFR cannot contradict it. So, the enactment that you quoted does not apply when it comes to CUE because congress did not delete USC @5109A. CUE is a legal challenge of a decision. The direct challenge to the Secretary is not intended to be a new or supplemental claim.

38 U.S. Code § 5109 A - Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.

(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.

(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)

There is some confusion because I think that 38 CFR 3.2500 does contradict 38 U.S. Code 5109. 38 U.S.C. Code 5109 was established around 1997 and 38 CFR 3.2500 was just recently established around February 2019. In my post I asked if the VA was trying to eliminate or get around CUE/EED claims and paying large retro payments? The 38 CFR 3.2500 says that yes, a veteran can file these claims for CUE/EED, but the end result can only be that the veteran is awarded and effective date of the date of the supplemental claim and not the original claim filed. When the 38 U.S.C. 5109 was established the 38 CFR 3.2500 was not in existence and the VA does not have to delete/void it though they might try in the future like I stated but it clearly states: The effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim. So, The VA does not have to delete/void 38 U.S.C. 5109. The VA has been trying to move away from all legacy claims and establishing the new AMA Review and forcing veterans to use these forms IMHO (IN MY HUMBLE OPINION) is just the beginning. Why else would this regulation state that the effective date would not be earlier than the date of receipt of the supplemental claim?

[pacmanx1]

25 minutes ago, JKWilliamsSr said:

I am finally at 50% for my feet.  Going to file for a EED.  Waiting for my back claim to be finished at the BVA and hope to file the both at the same time.   I think I have a legit CUE for my feet.  Not so sure about the back since the issues is the VA claims there is no diagnosis.  Not sure how that will fly. 

Yes, I understand. The purpose of some of these posts are simply to inform veterans. The 38 CFR is like a living wildfire, you have to keep an eye on it, or it will get out of control. These regulations change all the time, and the VA does add, or remove them and the more you know the better chance you have to win your claim.

[pwrslm]

The CUE under USC is not a typical claim for benefits. The Mission act addresses a claim for benefits. CUE is a legal challenge, and the purpose is to correct an obvious mistake, not to make a claim for benefits.

The CUE does process the same as a claim, but when they address it IAW USC it flows through as an adversarial instead of non-adversarial. The VA is in full opposition and holds zero duty to help the vet, unlike a typical claim. So while the CUE can process through the same channel as a claim for benefits, it is not a claim in the traditional definition.

 

"The effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim."

 

 

Edited November 9, 2021 by pwrslm