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

[pacmanx1]

7 minutes ago, Otrgypsy said:

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 ???

If you check out VA Form 4597, there is no MFR (MOTION for RECONSIDERATION) at the VARO level. It states that the MFRs have to be mailed to the (BVA) Board of Appeals Litigation Support Branch.

As to your retro payment Keep checking va.gov payment history.

[broncovet]

VA's definition of Clear Unmiskakable Error is found in 38 CFR 3.105, as follows:

Quote

i) Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied.

 

[Vync]

Don't forget about VAOPGCPREC 12-95. Per Bell v. Derwinski, 2 Vet. App. 611 (1992) requires “…medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.” Additionally, “The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.”

Please note that any document authored by the VA is considered to be in the record, even if it was not before the adjudicator when they made the decision. That's one of the reasons why I don't always buy the evidence list in the decision record. It might say they reviewed this, that, or all evidence of record, but you have to look at the evidence and the decision to determine if they really did review it and whether or not they got it right.

Please note that I quoted sections from that OGC precedent letter. To get the full picture, just look it up and check M21-1 to see how the VA interprets and should apply it.

 

 

[Otrgypsy]

12 hours ago, Vync said:

Don't forget about VAOPGCPREC 12-95. Per Bell v. Derwinski, 2 Vet. App. 611 (1992) requires “…medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.” Additionally, “The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.”

Please note that any document authored by the VA is considered to be in the record, even if it was not before the adjudicator when they made the decision. That's one of the reasons why I don't always buy the evidence list in the decision record. It might say they reviewed this, that, or all evidence of record, but you have to look at the evidence and the decision to determine if they really did review it and whether or not they got it right.

Please note that I quoted sections from that OGC precedent letter. To get the full picture, just look it up and check M21-1 to see how the VA interprets and should apply it.

 

 

 

[Otrgypsy]

I litigated Medical Issues in real courts and in front of legitimate juries, judges and appellate courts for 35 years. Just because some statute or reg gives a few examples of CUE, does not mean CUE is limited to those errors. Any moron knows that. It is not possible to make an exhaustive list of how anyone, especially an organization so filled with incompetence and incompetent employees as the VA can commit inexcusable error.

There is no clearer CUE then failure to render a decision on an issue before a court on appeal. I am not talking about error. I am talking about a major brain fart by the court. They did not render a decision I disagree with. They failed to render any decision at all on a disability that was so clearly before the court that it was one of the 5 disabilities listed on the website as under consideration before the decision. It is now listed on the website as having been service connected. The only problem is that there was literally not one word said about it in the BVA's decision. It was specifically enumerated as denied in the original Statement of the Case. It was specifically cited as error in the Notice of Disagreement to not acknowledge the service connection of CFS. No one ever claimed CFS did not exist. Every basis for the typically dishonest BS VA denial in the original decision has been found by the BVA to be false as they explained their ruling on my other, more serious claims.

Failure to render a decision on an issue that has been properly placed before the court by timely appealing with a specific citation of error is way more "Clear and Unmistakable" then any exceptionally screwed up interpretation or misconstruing of evidence. It is dereliction of duty. I am not saying it was intentional, just a real screw up.

After connecting my brain damage, acquired psych issues, OSA w/insomnia, several GI diagnoses starting with IBS and in light of the 40% given me for bilateral leg neuropathies earlier during the remand, they may have just assumed they were done because it was clear I was solidly a scheduled 100%.

I was considering the Motion for Reconsideration simply because anyone who bets the VA will do anything legitimate or correct is a fool.

[broncovet]

Good luck filing a MFR based on failure to adjudicate an issue.  This has already been decided at the CAVC some time ago.  In a nutshell (my summary), when the BVA fails to adjudicate an issue:

A.  The remaining issue is "deemed denied", and the appeal period begins as if it were denied.  

B.  CUE error "must be outcome determinate error".  This means the error has to "manifestly change the outcome", and, the VA could easily argue it did not change the outcome, you were already awarded 100 percent tdiu. 

C.  Filing a MFR "is not" the same thing as filing a CUE.  They are different animals.  

D.  If you file a MFR, the VA "will not go on a fishing expedition" to find Cue errors, they only address issues "you bring up" in an appeal, MFR, or CUE, as applicable.  

    Yes, the above is maddening.  Later CAVC cases have limited the times when the Board's failure to adjudicate indicates a deemed denial.   I was just as mad as you, when I figured out the VARO/BVA "did not adjudicate" all my issues.   Worse, they dont have to adjudicate them all, they are "deemed denied".  

    Since you indicated you had "litigated medical issues in real courts", then you surely should know how to search case law to help you.  And, maybe you dont need a lawyer, with your experience in litigation.   

     However, trust me, litigation with VA is entirely different than litigation in a real court.  If you are a major league baseball player, then you would not necessarily be also an expert in basketball.  (Even tho both are played with a round ball).  In the same way, experience in litigation, wont help you know the ways in which VA differs in the real world from real courts.  

    When I recommend a lawyer, I ALWAYS suggest a lawyer EXPERIENCED IN VETERANS LAW, not just a lawyer.  ON NOVA site, these attorneys are mostly certified to represent Veterans at a particular court, such as CAVC and or federal courts.  

   Good luck, we are here to help, and, hopefully you can learn from my mistakes also.