The VBA processed my CUE as a supplemental claim and now it's in limbo

[MoDiggler]

First time posting here. Up until now I've been able to navigate the system on my own for the most part. Had an attorney for a while and that didn't work out so I'm on my own and need a voice of opinion rather than reading something from a few months ago. I apologize if this becomes a long read.

I enlisted in the Marines in 1995 for four years during which I re-enlisted for another four years. I completed my first contract without any issues however that wasn't the case with my second period of enlistment. Six months into my second enlistment I was discharged with an OTH in 1999. While processing out, a representative from the San Diego VBA showed up to meet with all the servicemembers that are getting discharged and she tells me I still qualify for benefits and to go see her at the RO to fill out a claim for benefits. I had been severely injured during my first enlistment along with some broken bones, skin rash and scars. Looking back I guess she was trying to make sure I didn't slip through the cracks because I was told by everyone, Staff NCO's, Platoon Commander, CO, that I wasn't entitled to receive benefits because on my OTH. So, the day after I get released from service I go to the San Diego VBA and fill out a claims packet. The same representative that I saw on base was the same that helped me file the claim. She told me to make sure to write down that I had two enlistments, one was completed with honorable service and the second was OTH. She also told me to request a hearing at the VARO to substantiate my claim since my records were still at Marine HQ. So I do all that and the RO starts sending me letters asking me to provide the facts and circumstances surrounding my discharge which I had no clue what they were referring to. Even when I asked I couldn't get a straight answer. I gave them what records I was able to copy before getting out so I didn't know what to do. I called and spoke to the same rep that helped me file my claim and she stated that she didn't know why the ratings team was requiring me to provide facts and circumstances and told me there was nothing she could do. I was given a C&P exam which confirmed all the injuries I had gotten in service and gave the findings to the ratings authority which couldn't do anything until I was deemed eligible to receive benefits. This whole process began in November 1999 and lasted through March 28, 2000 when they denied my claim for benefits. The reason, inability to furnish facts and circumstances surrounding my discharge. 

After that letter, I was discouraged from filing an appeal or seeking benefits. I eventually got my benefits seven years later and forgot about the whole thing until recently. It turns out, I was eligible the whole time and the decision makers were well aware of my two enlistments and the fact I served the first one honorably. They had already began the process of determining my eligibility a few days before I was discharged and were set on this path of processing my eligibility under my OTH. It's amazing the stuff I've found in my c-file. Anyways, I tell my former attorney about this and he seemed intrigued enough to file a CUE for me using a supplemental claims form. This was September 09, 2022. A few months go by and they have me take an exam for two issues that were from the 1999 examiners report which made me think I had a valid CUE. Turns out, they processed my CUE as a supplemental claim and picked two random issues to adjudicate which they processed as if I had just filed for them. One was for a burn scar which is gone now and the other for a rash I had from taking the anthrax vaccine. It ran rampant all over my body and would go away and come back. This cycle repeated itself for about three to four years after I got out and prevented me from doing anything unless I was covered up. It was a bad time but now, now I get one or two spots on my arms, chest and groin area which isn't enough to warrant compensation but it did BACK THEN. So I get my decision letter and there's no mention of CUE anywhere on the letter. I've done CUE's in the past and it's shows up as a new claim with a decision letter addressing the error and why it's valid or not. This letter contained none of that which made me a little upset because the paperwork stated my claim for CUE and was very clear on the supplemental claims form as well, that this was a CUE, not a supplemental claim. 

After a few days I decide to re-submit my CUE using no form, just a three paged document that stated what I wanted the VBA to do. Look at my claim for CUE, tell me I'm right or tell me I'm wrong and why, so I can appeal it or be done with the whole thing. I fax it over and they day they receive it is the day they closed it. I decided to use the message portal online to find out what's going on with my CUE. They eventually get back to me and tell me that they're already adjudicated the CUE and to read the decision letter which is the very same letter that mentions nothing about my CUE. I respond by pointing out the differences between a supplemental claim and a cue and ask them to provide me a response as to what part of my decision letter I need to reference in regards to their "decision". A few days go by and they tell me the matter is closed. I call the 1800 number and get somebody that doesn't have the slightest clue what a CUE is. I try again the next day and they tell me to appeal the decision and I ask them to tell me what the grounds of my appeal should be since the neither confirmed nor denied my CUE. I decided to go online and try requesting a higher level review and stated why I was appealing the supplemental claims decision and they close it the same day I file it. I call the White House complaint line and after a few minutes they transfer me back to the 1800 number to speak with a representative that didn't know what they were talking about. He did finally acknowledge that my CUE was processed as a supplemental but told me to appeal the decision and that CUE's aren't for effective dates. I just hung up the phone before I said something stupid. So now I'm going on seven months and still haven't filed my CUE. I feel like I've hit a wall with this thing and I don't know what to do. Any suggestions will be greatly appreciated. I don't see a way to post documents on here but will do so once I find out if that's possible or not. Thank you.

[Rattler]

So without you redacting (erasing) your personal information and posting the decision letters hear it's kind of hard to help you. I will tell you this the fact that they processed your CUE claim as a Supplemental claim is a CUE Claim in itself. 

It is also a CUE claim to not process you CUE claim for EED. You problem is not many know how to process a CUE claim.

The other problem is it is not easy to write a CUE claim. You have to use very specific VA Regs and write it in a certain way. without seeing what you have done I am guessing in the dark.

You said you had a prior honorable discharge where you were injured. Was it an honorable discharge to re-enlist? Sometimes the VA looks at  re-enlist honorable discharge and the UTH as one service period.  This is not correct as you are entitled to any service connected injuries, and compensation you received in you 1st enlistment there are BVA cases that award for prior service.

Even with a UTH Discharge you are entitled to Chapter 17, Health Care benefits for any injury you received in service. The VA is required to rate you for your SC just like you were getting compensation. That means the VA has to rate you to treat you unless they are doing it under humanitarian reasons. (humanitarian reasons is a whole new thread)

Others may have more info.

hope it helps.

[pacmanx1]

7 hours ago, MoDiggler said:

This was September 09, 2022.

I know this may sound a little confusing but IMHO (IN MY HUMBLE OPINION), since your last rating decision was/is dated September 09, 2022, instead of filing a CUE Claim, simply file a timely disagreement. Simply file an HLR or Direct BVA Review disagreeing with the decision made on or around September 9, 2022. Filing a timely appeal will/would get the veteran the same benefits as filing a Cue Claim if awarded.

CUE Claims are harder to win but not impossible, but they must be specific and state the cause and the regulation that the VA violated at the time of the decision whereas filing a timely disagreement the veteran just has to prove that the VA failed to properly process his/her claim. Keep in mind that you must prove that you have a current disability and file for disability that will support your claim. Filing a disability for your skin if you have no residual symptoms may be a straight uphill battle but filing for a particular injury or injuries with medical evidence would be a lot easier.

As stated, since you are within your appeal timeframe within one (1) year, just file a disagreement stating that you disagree with your last decision and make sure that you spell it out. List the injury or injuries of your first enlistment and your current symptoms and go from there. You do not have to mention that you are filing a CUE Claim because the VA will most likely mess it up.

To give a little more insight, I filed a CUE Claim, and the VA reopened my claim and sent me to a C & P exam and the examiner gave me a favorable medical opinion, but the VA denied my claim. I then filed a supplemental and the VA once again denied my claim. I finally filed a Direct BVA Review, and my claim has been at the BVA waiting to be reviewed by the BVA judge for close to two years. It is going to take some time, but you should have a better chance at getting a better decision from the BVA.

P.S. Don't waste your time or breath calling the VA, you have to file a new appeal to get this straighten out. It must be in writing. 

Edited April 11, 2023 by pacmanx1

[broncovet]

I agree with Pacman.  Remember:

The Veteran gets the benefit of the doubt (BOD) with claims/ appeals.  

HOWEVER,,

"There is no BOD with CUE".    With CUE you "raise the difficulty level" in completing your own claim.  You have to meet a much more onerous standard of review.  

Unless you thoroughly understand CUE, you can create problems for yourself.  

In your example, if you had a sept. 2022 decision, file a cue that has been/or is denied, and you dont file a Nod within a year, then you could have been harming your self.  

You see, its highly possible you "meet the criteria" with the BOD standard of review. "but do not meet it" with the Cue standard of review.  

Mostly, why would you make it more difficult for yourself with a CUE standard of review, when a simple NOD would work fine to get your benefits, retaining that all important Benefit of the doubt.  

Its challenging enough for me to get my benefits "with BOD", and Im not in the mood to make it more challenging to give up my BOD.  

Now, we have a former member who was an expert on CUE, who did well with CUE's even after a decision in the appeal period.  Experts can sometimes get away with doing things that lay people should avoid, because they can rely upon their years of expert judgement.  

If you have won "at least one" CUE, then you probably have a good idea what it takes to win a cue, but if you have never won one or even filed one (and this is your first), you probably need some guidance and experience.  

Most people are not "born" with an MD, or an expertise in CUE", but get such expertise only after years of training and experience.  

Personally, I filed "one" Cue and it was a bust.  I know what I did wrong, but have not been where I needed to fix it and refile, so I just won my benefits "without CUE", as have many/most other Vets.  Its deliberatly difficult to win a cue.  

[MoDiggler]

Yeah I think I might try the HLR route again. It just irks me how long it takes to fix a mistake from the VBA. I know there's good people there and it irks me when they do stuff like this because it can take years to remedy. Hey Rattler, if you can please tell me how or point me in the right direction on how to upload documents? I swear there was a tutorial around here but I can't seem to find it. As for your question, I reenlisted three years into my first enlistment. All my injuries are from my first enlistment. The attorney I had at the time wrote the CUE and filed using a supplemental claims form and in my opinion I felt it lacked substance so once I found out they processed my CUE as a supplemental, I wrote it up myself and submitted it again. That's what set this whole debacle in motion. I've never had anything like this happen to me in all my dealings with the VBA. This one is a little more personal for me because it added to everything I was going through at the time. I was pretty much out on my behind when I got out. I don't remember why I didn't appeal their decision. I was homeless for a while, couch surfing a lot so a lot of that time period is hard for me to remember. I had completely forgotten about filing a claim in '99 until I got a copy of my c-file a couple years ago. Then I start researching and find out I was entitled to benefits and wouldn't have had such a bumpy ride but that's all in the past.

I totally agree that they committed another CUE by not processing my CUE correctly and I mentioned that to them in a back and forth online. They did not like me pointing that out. I have a general disdain for the bureaucracy that is the Veterans Benefit Administration. So much needs to be fixed. I went and filed a HLR so hopefully that resolves it. I have another approach I can use if they don't find my CUE to be valid. What scares me is the waiting. I don't want to be some guy clinging onto life in a wheelchair that finally gets his benefits. I have an appeal that's going on it's sixth year and finally got date for at the end of June. That's why I was so adamant about having my CUE adjudicated at the RO level because it felt like a no brainer. Thank you Rattler, Pacmanx1 and Broncovet. It helps hearing it from real Veterans and not someone motivated by money or part of the system I'm fighting. 

[Vync]

@MoDiggler As far as I know, the VA does not have a dedicated team handling CUEs. In fact, when I filed a couple of them in 2019 the VA let mine go into limbo while they pondered which form was needed to file a CUE. I actually had to send them a direct link from M21-1 telling them no form is needed. I decided to just send in a supplemental along with it. To my surprise, the team working the supplemental granted CUE on one, but denied the other (which is now idling at the BVA).

Because you are still within the one year window, filing a supplemental/HLR/BVA would be the best option because of benefit of the doubt. However, CUE can be filed at any time, but for a CUE to be valid it does have strict requirements, but benefit of the doubt would not apply. 

[Rattler]

If you are talking about the forum the link below will tell you how.

https://community.hadit.com/topic/82373-how-to-attach-a-file-to-a-post/

If you need to up load documents to the VA. Login and follow the instructions.

http://access.va.gov

Sorry it took so long to get back. When Tbird gets better I will ask her to do one on How to upload documents to the VA. Or I may take a shot at it.