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

[pwrslm]

Actually, the VA has no need for a new C&P when you file CUE. Refusing to go would not change the outcome of the CUE determination because they are not allowed to use new evidence when they process the CUE.

 

[pacmanx1]

4 minutes ago, pwrslm said:

Actually, the VA has no need for a new C&P when you file CUE. Refusing to go would not change the outcome of the CUE determination because they are not allowed to use new evidence when they process the CUE.

Actually, you are still wrong because, if a Cue claim is granted it could and most likely change the veteran's combined rating percentage. Cue claim can potentially increase the veteran entire/overall rating. As to the particular disability rating, yes, it would be based on the symptoms of the record at that time of the original rating but the VA can/could/would request a new C & P exam and have the examiner review the evidence.  

[pwrslm]

C&P exam from the original claim is all they can use for CUE. New C&P should not be made for 3-5 years IAW current reg's and the CFR. Exceptions to that would be a new evaluation, which is not what a CUE is all about. So no, when a correction based on VARO errors are made, it should be specific to that error and not a new evaluation (which would open a whole new and separate appeals process). The VARO should NOT begin a new evaluation based on the "opportunity" when they made a mistake. Whatever results from the CUE is baseline and if they want to re-evaluate the issue, they need to follow the rules. This can be claimed as retaliatory conduct by the RO because there is nothing that can be used in CUE with the new evaluation. They cannot use the new evaluation to make that determination, and pushing new C&P's is an abuse of process which has been documented by the IG in the past.

 

On July 17, 2018, the VA Office of Inspector General (OIG) released a report entitled “Unwarranted Medical Reexaminations for Disability Benefits,” that found that VA conducts thousands of unnecessary medical exams for disabled veterans, and is on track to spend more than $100 million over the next five years on these unwarranted reexaminations if nothing changes.

[Mr cue]

I wasn't just speaking on your case.

Iike in my case the board did a straight granted it was send to the ro to give a rating and effective dates.

I didn't agree with the rating and effective dates granted.

I nod the board change my docket number to the date of the new nod.

This would cause veterans to Wait years to have the case return to board.

This is part of my petition for extraordinary relief and the court just order the board to answer in 10 days.

I ask the ? Because I was trying to see if they change your docket number once you nod the ro grant.

 

[pacmanx1]

6 minutes ago, pwrslm said:

C&P exam from the original claim is all they can use for CUE. New C&P should not be made for 3-5 years IAW current reg's and the CFR. Exceptions to that would be a new evaluation, which is not what a CUE is all about. So no, when a correction based on VARO errors are made, it should be specific to that error and not a new evaluation (which would open a whole new and separate appeals process). The VARO should NOT begin a new evaluation based on the "opportunity" when they made a mistake. Whatever results from the CUE is baseline and if they want to re-evaluate the issue, they need to follow the rules. This can be claimed as retaliatory conduct by the RO because there is nothing that can be used in CUE with the new evaluation. They cannot use the new evaluation to make that determination, and pushing new C&P's is an abuse of process which has been documented by the IG in the past.

 

On July 17, 2018, the VA Office of Inspector General (OIG) released a report entitled “Unwarranted Medical Reexaminations for Disability Benefits,” that found that VA conducts thousands of unnecessary medical exams for disabled veterans, and is on track to spend more than $100 million over the next five years on these unwarranted reexaminations if nothing changes.

Let's agree to disagree. The site that you posted has absolutely nothing to do with Cue Claims. It is VA Unwarranted medical reexaminations. That part I do agree that the VA could use the veteran’s current treatment records to determine if the veteran's disability has gotten worst. Now as for determining an EED/CUE claim in my experience, the VA has in the past requested reviews of the veteran records. By saying that the VA does not need a C & P exam, the VA can do whatever they choose to do. None of us like the merry-go-rounds or the hoop-loops that the VA puts us through but to go against the grain is just a waste of time. Life is short and if it is simple to go to a new C & P exam to get your benefits why not go? Why argue that it is against your rights or against their own regulations. We all know that the VA does not follow their own regulations. Time is more on their side than ours.  

[pacmanx1]

8 minutes ago, Mr cue said:

I wasn't just speaking on your case.

Iike in my case the board did a straight granted it was send to the ro to give a rating and effective dates.

I didn't agree with the rating and effective dates granted.

I nod the board change my docket number to the date of the new nod.

This would cause veterans to Wait years to have the case return to board.

This is part of my petition for extraordinary relief and the court just order the board to answer in 10 days.

I ask the ? Because I was trying to see if they change your docket number once you nod the ro grant.

Even though a lot of our claims are very similar they are very different. This is what we call the hamster wheel.  That the board setup is first in first out unless the veteran files an advancement to the docket and as far as I know, there is no way that the advancement on the docket stays with the veteran's claim. It is a viscous cycle that keep going and going. Yes, each time my appeal went to the BVA it got a new docket and new date for that particular year.