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Ssi Not Considered


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#1 chinavet

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Posted 03 August 2012 - 06:45 PM

Curious what you folks think:

As you know, cause you helped!, I was awarded 70% last year after 10 years of VA fumbles. They rated me at 30% ten years ago and slowly raised it though the years so that all my retro was eaten up by money they paid out in NSC Pension. They said they were unable to get Social Security data regarding my SSI which predated my NSC Pension.
So, I went in Novermber after recieving my award letter and asked the SS folks how to get verification that I was 100% disabled as a result of my now service connected condition. The lady at the desk typed me up a letter and I turned it in in January in hopes of IU or an increase.
Question is: Does this consitute a CUE? Can I get them to go back 10 years and now look at the fact that I was already government rated as 100%??

#2 john999

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Posted 04 August 2012 - 04:11 PM

If you had gotten your SSDI records ten years ago and turned them into the VA and they had not considered them in your rating decision for TDIU that might be a CUE. In the future don't wait for the VA to get records. Get them yourself. If you can prove that the VA did not make a good faith effort to get your SSDI records you might have something, but I don't think it will be a CUE. I might be wrong so you could try.

#3 doogie

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Posted 04 August 2012 - 06:44 PM

The VA did the same with my SSDI SOCIAL SECURITY said there were no smedical records for SSDI
I was totally disabled in FEBUARY 1998
I wrote and asked SOCIAL SECURITY was the VA correct in saying they had no files
I got a call from SOCIAL SECURITY one and one half months later and the lady on the phone told me that they did not keep records that old [they destroy old records]
I told her what the problem was and what i needed was a letter from SOCIAL SECURITY stating the reason for my disability
She wrote a letter stating the reason for disability was severe heart attack and stroke which disabled me
I also did have my acceptance letter from SOCIAL SECURITY
I put the two letters together and sent it to the VA
Now i do not know if this is good enough for the VA but they have it and cannot deny i was disabled with the diseases

You may write your local office and ask for someone to call you and talk to you
Your SOCIAL SECURITY file has a code for your disability's
All i had to do was to say what i thought i was disabled for

Hope this helps

#4 chinavet

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Posted 04 August 2012 - 10:23 PM

Thank you both.
The VA said they were unable to obtain information.
You're right. Had there been a Hadit in my life then
I would have been better prepped. I was flying blind
And the DAV was giving no guidance.

I'm just glad now that both of us have verification
Of our earlier diagnosis.

Thanks.

I'll keep you posted.

Doogie, anxious to hear how yours turns out!!

#5 Philip Rogers

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Posted 05 August 2012 - 05:26 AM

Chinavet - I would pursue it as a CUE. The VA had the duty to get those SSI records and if they couldn't should've notified you so you could get them. Remember you can't win if you don't try!

doogie - they lied, they do keep old records. Contact SSA and request to view your file at their office.

pr

#6 Ethan'sGrandma

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Posted 05 August 2012 - 01:23 PM

My information for SSDI purposes are from 2000 with medical evidence as far back as 1996 and VA got it from SSA recently. So, yes, it sounds like somebody was not totally honest about those records, but they are in storage. However, from that long ago, many are not on cd (mine are not), but actual paper copies, so that poses a problem to getting them ourselves, or even to view at local office. I attempted to get mine because I wanted to see what the VA got from them, but because it's not for a claim for benefits through their agency (SSA), I had to pay what could be quite a fee (told it could be around $800 by the local SSA office manager) due the records are on paper. In order to view at the local office, I still had to pay upwards of $150 from what I was told, due to processing the request, etc. However, I recently was informed by them, after I complained of the shadiness of that rule for my due process from VA since they have knowledge about me that I can't dispute since I never obtained those records, of the rules to be able to obtain them without that exhorbitant cost, so I need to get on that. Good luck with your claim...

#7 Berta

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Posted 05 August 2012 - 02:24 PM

Chinavet

I agree with Philip , but the CUE isn't in their lack of Duty to assist- it would be in the rating they gave you at that time.

When they violate DTA regs, that isnt a CUE .CUEs lie in other legal errors and most of them are made on rating sheets.

"They rated me at 30% ten years ago and slowly raised it though the years so that all my retro was eaten up by money they paid out in NSC Pension. They said they were unable to get Social Security data regarding my SSI which predated my NSC Pension."

It sounds like it has been a staged rating since.

The CUE,in my opinion, would lie in the original pension award letter, -do you have that rating sheet?

#8 john999

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Posted 05 August 2012 - 04:57 PM

Berta

So the fact the VA failed to get the SSI records is a failure in the VA's duty to assist. I know that " duty to assist" issues can't be part of a CUE. For instance, the VA fails to give you a C&P exam. That is a failure in the VA's duty to assist and not a CUE. This is what the VA told me and my lawyer anyway. If you have VA's records and the VA fails to get them is that also a failure in duty to assist? That would be enough for a regular appeal but not a CUE, correct? If the records are in the file and VA does not review them then that is a potential CUE.


John

#9 carlie

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Posted 05 August 2012 - 05:28 PM

Personally I do not feel that in VBA's lack of consideration
of SSA info in the prior decision would rise to a CUE.

Reason - it would still always leave room for the weight
accorded by the decision maker.
In other words that information alone on it's own would not turn the decision.
JMHO

#10 jbasser

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Posted 05 August 2012 - 07:50 PM

You would be better served to get your hands on a couple of federal court cases that were overturned because the VA didnt get the SSDI records.
Also the SSDI disability condition must be the same condition your service conencted for.

There is no cue here as the decision is not final and there is no cue on duty to assist issues.


You need an attorney to help you.

J

#11 Berta

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Posted 06 August 2012 - 10:00 AM

I agree John999 :

“So the fact the VA failed to get the SSI records is a failure in the VA's duty to assist. I know that " duty to assist" issues can't be part of a CUE. For instance, the VA fails to give you a C&P exam. That is a failure in the VA's duty to assist and not a CUE. This is what the VA told me and my lawyer anyway. If you have VA's records and the VA fails to get them is that also a failure in duty to assist? “

Yes.
“That would be enough for a regular appeal but not a CUE, correct?”

Sure,if one is still in the appeal period.


“If the records are in the file and VA does not review them then that is a potential CUE.”

Yes, I cited 38 CFR 4.3 and 4.6 as a clear and unmistakable evidentiary error in my CUE claim.

But I succeeded on 3 other legal errors so I dont know if that type of CUE under 4.3 and 4.6 would work and VA didnt mention that in my decision.

Chinavet said “I was awarded 70% last year after 10 years of VA fumbles. “ Was that a TDIU award?

Are you still in the appeal period as you could potentially get a year additional retro with the SSDI records, by appealing this decision.


“They rated me at 30% ten years ago and slowly raised it though the years so that all my retro was eaten up by money they paid out in NSC Pension.”

If this was a continuously prosecuted claim, then you can appeal the most recent decision.

Did any decision over the years become unappealed?

If so that is the decision that could be cued. J Basser is right and I bet there are similar claims at US CAVC. When I get time I will search there.

Has the VA acknowledged the letter from SSA you gave them?

John said:
“If you can prove that the VA did not make a good faith effort to get your SSDI records you might have something, but I don't think it will be a CUE. I might be wrong so you could try. “

I agree that something is wrong when theVA does not get SSA records that are probative to a claim.

But VA must be fully aware these records exist and the vet must also sign an authorization form and send it to VA.

My husband's SSA records were critical to his SC claim , e signed the authoritization form 21—22,and the VA never even attempted to get them but told my Congressman the SSA refused to release them. It was BS. VA got them right away after I called SSA and found out they had lied.


wait hold that phone------------------------

'replying to ssi not considered'

was the SSA award a SSI award or a SSDI award?

SSI is not the same criteria as SSDI.

#12 john999

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Posted 06 August 2012 - 03:31 PM

Carlie

You know I think it is probably VA SOP to argue that unconsidered evidence is often amitted to by VA, but then branded as not be conclusive enough to have changed the outcome of the decision. This is what VA is saying in my CUE. They admit not considering my evidence, but then say it is not "undebatable" that this evidence would have changed the outcome of the original rating. This is a very large hole the VA can drive a truck through because they say "reasonable mind" (their minds) must agree that evidence for the vet is undebatable. You can debate almost anything except maybe speed of light or gravity. VA says that evidence of CUE must be objective, but the method they use to determine that is very subjective. Phrases like "reasonable minds" and "undebatable" are subjective unless you have a math problem.

#13 chinavet

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Posted 08 August 2012 - 08:51 AM

Thank all of you so much!
I am in the appeal period and did turn in the documents needed for
an upgrade.
I will let them decide this upgrade. It has been in since 2010 and they've had all they need to
Rate it since January.
After they make a ruling I will decide whether or
Not to submit a CUE though it sounds like they will balk. After 12 years of this
I may just quit what feels like a part time job with the VA if my upgrade is
Approved
Thank you again. So glad I found you guys.


#14 USNDW

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Posted 17 August 2012 - 11:17 PM

If the VA failed to obtain records that they knew existed as identified by the Veteran that were available, probably a New and Material Evidence claim.

If the C file has a copy of the SSA records, but the VARO did not mention them in the evidence, then the problem would be, as already pointed out, proving that those records, if reviewed would have led to an increased rating, TDIU, or SC pension. Just because they don't list a document in the evidence section, also does not mean you can prove they did not review it.

Pretty crappy. I also think that is has been pretty recent that the VA and SSA were REQUIRED to gather records from each other? Coul be wrong, but though it was mandate about 3-4 years ago.

#15 john999

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Posted 18 August 2012 - 06:43 AM

If the VA fails to list or mention evidence in their rating decision that was in the record at the time then you can consider that they have not reviewed it. This safisfies two of the three prongs of a CUE. The other prong is the one that states this unreviewd evidence would have made an undebatable difference in the outcome of the decision. Many stumble over the word "undebatable". What does it mean in context of a VA decision? That is not so simple and case law provides some answers. The VA maintains that any evidence against the vet no matter how trivial makes an outcome debatable. If you have ten psychiatrists saying the vet is 100% and a ward flunky that says the vet seemed ok then the outcome is debatable. Is this justice?

#16 chinavet

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Posted 19 August 2012 - 11:54 PM

Seems to run counter to the tie goes to the Vet rule that governs appeals. There seems to be no standard of practice that runs across the board....

#17 john999

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Posted 20 August 2012 - 10:47 AM

Rules and standards for CUE are very different than standard appeal.