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

[Mr cue]

Yes I understand that I was just trying to point out the docket number thing.

If you look at the court order on my petition.

I think it's not legal to change a veteran docket number after a cavc remand.

Even if a veteran disagree nod  the board grant of anything it's still a cavc remand.

And should be given expidate treatment by law.

 

[JKWilliamsSr]

18 hours ago, pacmanx1 said:

The real issue here is that the VAROs are confused about what is the correct form to file to request your 2002 EED (Earlier Effective date).  At present there is no set form to file a CUE claim. You file a VA Form 526B and you get a letter saying that is the wrong form. You use a VA Form 4138, and you get another letter saying that is the wrong form. You file a VA form 0995 and you get another letter in the mail saying that is the wrong form. WTH. I finally got the VA to accept my VA Form 526EZ and the VA reopened my claim and sent me to a new LHI C & P exam but since I am already 100% scheduler, the VA continued my rating without even considering my request for an EED. My claim finally went to the BVA where it waits for who knows how long.

When the VA sent me to my recent LHI C & P exam, the examiner mentioned that I have/had an earlier diagnosis, but the Regional Office still ignored her medical opinion. So, yes, the evidence has always been in my file, but the Regional Office keep ignoring it.

In my case my attorney filed a 20-0996 and clearly put CUE claim.   The VA accepted it but did not adjudicate as a CUE claim.  They did not even address the CUE.  The basically stated that the effective date is correct based on what the law is today.  I think it was merely a way for the VA to avoid giving a large retro.  Regardless of what todays law states.  Any decision has to be based on the law at the time the decision was made.  A CUE claim for effective dates will have to be based on the law at the time.  What the VA is doing here it seems it to try to find a way to ignore CUE claims for EED's all together. 

[pacmanx1]

37 minutes ago, JKWilliamsSr said:

In my case my attorney filed a 20-0996 and clearly put CUE claim.   The VA accepted it but did not adjudicate as a CUE claim.  They did not even address the CUE.  The basically stated that the effective date is correct based on what the law is today.  I think it was merely a way for the VA to avoid giving a large retro.  Regardless of what todays law states.  Any decision has to be based on the law at the time the decision was made.  A CUE claim for effective dates will have to be based on the law at the time.  What the VA is doing here it seems it to try to find a way to ignore CUE claims for EED's all together. 

After reading 38 CFR 3.2500, I was thinking WTH. This is not real. Also, for about six-ten months (6-10) months, I was basically calling the BVA/VARO SENIOR SUPERVISORS trying to figure out what is the correct form to file. You are correct, it seems that the VA with 38 CFR 3.2500 is trying to get around paying any retro prior to February 2019. That was the purpose of my post, to inform. Again, since there is no legal form to file a CUE request and a Veteran can reopen his/her claim at any given time, the VA cannot deny the request. Yes, the claim will most likely have to go to the BVA or higher, but the veteran should win if the veteran continues his/her claim without missing a suspense date. Keep in mind that filing a CUE/Reopen claim a veteran can still file under 38 CFR 3.156 if the veteran finds new and pertinent/material evidence that the VA should have used in the original decision but failed to address or to request and consider in the original decision. Any form dated after February 2019 is the incorrect form because it allows the VA to say that the veteran used the wrong form, and it ties their hands to current law and gets them out of paying the correct benefit. IMHO(IN MY HUMBLE OPINION) there may be quite a few meaning a lot of appeals about this and may be even possibly  a new precedent case law. Now don’t quote me, I just think that this new 38 CFR 3.2500 is really wrong. It covers the VA and not veterans.

[JKWilliamsSr]

3 hours ago, pacmanx1 said:

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.  

I think it is a double edge sword.  With that said if a BVA decision grants service connection a C&P exam would only be necessary if they did not have the information already in the record to grant an actual rating.  For example you were granted service connection for a back claim but there are no ROM numbers in the file.  In my opinion if those numbers are in the file than a C&P exam is not warranted and it could be argued that they are developing evidence against the claim which is a violation of law (Hart v. Mansfield, 21 Vet. App. 505, 508) 

You can't completely trust the decisions that are listed on the knowva website.  What they do is put their own summary of a decision in their own words.  I will use Hart v.  Mansfield as an example.  Here is a link to the VA website and their interpretation. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015428/Hart-v.-Mansfield,-Nov-19,-2007,-21-Vet.App.-505

The actual decision of Hart v. Mansfield has some info omitted from the knowva website  http://www.uscourts.cavc.gov/documents/Hart_05-2424.pdf  In the decision it states "VA may not pursue such development if the purpose is to obtain evidence against the claim."   Citing Mariano v. Principi.  The decision also states: "see also 38 C.F.R. § 3.304(c) (2007) (development of evidence should not be undertaken when evidence present is sufficient for service connection determination)

[pacmanx1]

Quote

JKWilliamsSr

In my case my attorney filed a 20-0996 and clearly put CUE claim.   The VA accepted it but did not adjudicate as a CUE claim.  They did not even address the CUE. 

Did your Attorney file an appeal to the BVA? How long ago was your decision?

Edited November 10, 2021 by pacmanx1

[pwrslm]

 

13 hours ago, pacmanx1 said:

By saying that the VA does not need a C & P exam, the VA can do whatever they choose to do.

This I do disagree with. That is what they made the VA IG for. The issue on the C&P exam is very relevant because it demonstrates what the IG report stated, unnecessary exams which cost the VA wasted tax dollars. That was the whole thing the IG report was about, and it relates to your claim because they cannot use it to evaluate the CUE. IF, and only if, they need to change the rating from the date the error occurred, then (after the decision) they should employ a new C&P if it were warranted. Mr CUE is meticulous in his work, and so should all of us. We need not disagree, but instead find the actual rules/regulations supported by USC and CFR that support everything we submit, as well as validate every step the VARO takes. No exceptions, we stand together.