CUE in very favorable decision, Mtn for Reconsideration, How much Delay???

[Otrgypsy]

I just received a very favorable decision (after almost 10 years) that service connected my brain damage, acquired psych disabilities, sleep apnea and insomnia, GI disabilities and neuropathies, all due to solvent exposure.  HOWEVER,  they didn't say ONE word about my chronic fatigue syndrome, which has always been an issue on appeal. I notified them the next day of thier omission. I believe it was a typical (for the VA) oversight. CFS was originally denied on basis which have now been found in my favor.

Today, I read the fine print re: Motions for Reconsideration. It seems I must file one more formally. I will probably get a 100% scheduled rating on the decision as it issued, if it is done by a competent rater. That is a big if. I will clearly get 100% when Individual unemployability is considered, but because of the way one political party keeps trying to shave off benefits for the benefit of tax dodging billionaires, I would really rather have 100% scheduled, which would be guaranteed with CFS being awarded.

MY BIG QUESTION IS: Will the Regional Office go ahead and do an initial rating and payment on the Decision that issued and see if they need to revise it later, OR will the Motion for Reconsideration further delay initial payments ???

Edited April 26, 2023 by Otrgypsy
typo, additional facts, typo

[broncovet]

Was the decision you recently received a BVA decision?  Did you receive the envelope or is this based on ebenefits?

  If you did receive a board decision,  then you will need a VARO implementation decision. 

 Are you considering filing a MFR based on the omission of CFS?   Generally, except in special circumstances we dont recommend MFR's.  You can file an appea, or file CUE.  If this was a board decision, you can consult with an attorney about the omission of CFS at no charge and he may file a noa disputing the omission of the CFS.  Generally at the cavc level, eaja pays the attorney fees, so you have little to lose by consulting an attorney with a BVA (decision).   

For CFS, do you have 6 of these listed below?  

Quote

§ 4.88a Chronic fatigue syndrome.

(a) For VA purposes, the diagnosis of chronic fatigue syndrome requires:

(1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and

(2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and

(3) six or more of the following:

(i) acute onset of the condition,

(ii) low grade fever,

(iii) nonexudative pharyngitis,

(iv) palpable or tender cervical or axillary lymph nodes,

(v) generalized muscle aches or weakness,

(vi) fatigue lasting 24 hours or longer after exercise,

(vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state),

(viii) migratory joint pains,

(ix) neuropsychologic symptoms,

(x) sleep disturbance.

 

Lastly, you indicated your  opinion on a "political party".  Hadit is not about politics, so please dont bring up your political views again.  There are other websites where you can voice your opinions on politics.  While we do have new ownership, I have not been informed of any changes to the "no politics" stance.  

[Otrgypsy]

Decision by BVA Dated April 19, 2023. It was emailed at my request. It will be another 4-5 weeks before I receive hard copy in the 3rd world.

Yes, I have six conditions met.

And the BVA specifically found that NONE of the 6 VA Medical Opinions (other then the one that reversed herself to acknowledge service connection) are probative or reliable. Moreover, none of them even addressed CFS.

Why, "Generally, except in special circumstances we dont recommend MFR's."

MY BIG QUESTION IS: Will the Regional Office go ahead and do an initial rating and payment on the Decision that issued and see if they need to revise it later, OR will the Motion for Reconsideration further delay initial payments ???

Does a Motion for Reconsideration stop the machinery for payment on the decision that issued????

 

[broncovet]

The biggest reasons (my opinion) is that not many Vets advocates recommend MFR's is because:

1.  You are asking "the same group" who rendered the decision to change it.  Usually that does not happen "unless" you have new evidence, not previously considered.  

2.  The "appeal period clock" does not stop during the reconsideration period.  In other words, while you are waiting for the reconsideration, the 120 day appeal period can, and often does, expire.  This means you mess around with an MFR, and then miss the appeal deadline.  Berry law would seem to agree with me:

https://ptsdlawyers.com/motion-for-reconsideration-in-va-disability-appeals/

where they stated:

Quote

...(MFR)..However, this infrequently comes back favorable for the Veteran. 

In other words, the MFR rarely comes back favorably.  They suggest most Vets, who want to do a MFR, do that because they dont really understand how it works.  

    If you file an appeal at the CAVC, "The VARO" is supposed to pay you on stuff already awarded and not in dispute.  There was a fast letter on that, but Im not looking it up right now for you.  

    In sum, my advice is to contact one or more Veterans law firms, and ask them your question.   They will want to see a copy of the most recent BVA decision which you dispute.  

    NOTE:  CAVC decisions are not those "long winded" decisions like BVA decisions.  One attorney said the reason he does not like BVA decisions is that they take years, while a CAVC decision would likely be complete in 6 months or less.  But, ask your attorney on this also.  

    Remember:  EAJA pays the attorney fees, for most of the CAVC decisions.  NOT YOU.  

   My advice is to limit your attorney search to those who are on NOVA's list:

https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

     Discuss your questions with him, especially, after they have viewed your most recent board decision.  Since NOVA attorneys are "often" busy, and some limit their law practice to certain types of Veterans law, Veterans often have to seek representation by several law firms as law firms often decline to represent you.  

    I have made 3 CAVC appeals, and all were represented by law firms, and all achieved a favorable result.  But, with each, I had to ask an average of 3 law firms (per case), before I got ONE to agree to represent me.  Since you dont put up any money up front (never pay a Vets law attorney upfront money to represent you), and, since the lawyer DOES NOT GET PAID unless you get at least a remand, they dont accept EVERY claimant. 

    There are about 30 million Veterans, and probably under 1000 attorneys who represent VEterans on NOVA.  

    Contacting a law firm, and having them evaluate your case "does not" commit you to hiring them.  The commitment from both you and the law firm does not happen until/unless you sign a fee agreement with the firm and return it to the firm.  

    The 120 day appeal period "goes by fast", so dont wait.  Your law firm has to review your case, agree to represent you, and send you a fee agreement which you consent to, and this does not happen over night.  So, dont delay contacting a law firm.  The law firm, or yourself, must have a NOA in the hands of the CAVC within 120 days of your Board decsion, or it will be denied automatically.  

      Some Vets file a NOA pro se, and then hire an attorney, to ensure that the 120 day deadline is met.  

Edited April 26, 2023 by broncovet

[pacmanx1]

14 hours ago, Otrgypsy said:

Decision by BVA Dated April 19, 2023.

You can check va.gov to see if you have a payment about to be EFT transferred to your bank account. If you see small amounts separately for over the years, this amount will be combined for one lump sum payment just check the va.gov every now and then but not every day. There is no guarantee that your MFR will be approved or not but keep in mind that if you do file one, file it with the BVA and not the local VARO.  Pay close attention to your appeal right that you should have received in your emailed decision and if it is not there you can find them here. 

VA Form 4597, YOUR RIGHTS TO APPEAL OUR DECISION

How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified may not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038

Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision.

If you decide to appeal to the court of appeals, your 120 days are counting. 

[pacmanx1]

Since you are in you appeal status, it would be easier to file a court appeal instead of filing a CUE claim/appeal which is a lot harder to win if you are not familiar with the CUE Criteria.

Edited April 26, 2023 by pacmanx1

[Otrgypsy]

There is no time limit on attacking Clear Unmistakable Error.

I have a very low opinion of VA attorneys. The first one I hired who had a fancy web page and talked a good game was a low life scam artist just babysitting claim numbers just waiting to pick very low hanging fruit from the results of BVA reversal he contributed basically nothing to. Everyone else I have I have spoken to was stumped by medical issues. VA work seems to attract dim wits. This is typical of things that are administrative, simple paper pushers.

Some Clear and Unmistakable Error, for those that actually understand what that means, can't be denied. And, that is what CUE is meant to be. In my case there is a real disability that was documented over decades, CFS. In the original denial it was denied based on the typical VA lie that my organic brain syndrome, Multiple Chemical Sensitivity and toxic encephalopathy were not service connected. Now that the BVA has acknowledge the truth that all adverse Medical Opinions were BS that is not even probative in the least and has granted service connection wiping out the whole basis for the Denial of CFS.

You can't acknowledge a disability, wipe out the basis for its denial, and then pretend it doesn't exist. Only a fool would waste time and money appealing such an order. The BVA demonstrated a very clear intent to approve all my claims. They simple forgot to say word 1 about the one claim no one, including myself paid much attention to and basically didn't brief. This isn't intentional error. They simply overlooked something after putting themselves in the position where they spent 24 pages explaining it must be granted.

Thanks for reminding me why I stopped paying attention to this site. There is a lot of bloviating and bad advice. I didn't ask any questions about weather or not I should use a MFR to address this oversight.

I ASKED: 

Will the Regional Office go ahead and do an initial rating and payment on the Decision that issued and see if they need to revise it later, OR will the Motion for Reconsideration further delay initial payments ???

Does a Motion for Reconsideration stop the machinery for payment on the decision that issued????

FYI, I found the VA regs or manuals that answer the question, should anyone else be interested. The answer is, If the BVA decides to consider a MFR (decide it on its merits), it does entirely stop the payment machinery. So clearly if one wants to get paid, it is best not to file a Motion for Reconsideration until you get your back pay. Moreover, this gives the VA a chance to issue a legitimate rating. That should get me a scheduled 100%, even without the CFS being considered. And if they process it properly (within about 60 days) I still have plenty of time to file a formal motion and still appeal (if I want to) after I learn if my claim has been rated by one of those very illusive creatures - a competent VA employee.