Department of Veterans Affairs October 28,2012
Philadelphia Regional Office
PO Box 8079
Philadelphia ,Pa. 19101 Re: 310/3POST/CG
Nehmer decision dated January 17,2012
C # XX XXX XXX
Department of Veterans Affairs Original Agency of Jurisdiction
130 South Elmwood Avenue
Buffalo, N. Y. 14202 2478
REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR JANUARY 17th 2012 DECISION
I was advised by NVLSP to send my correspondence to both above VAROs to determine who holds jurisdiction over this request .
I respectfully request the VA to call a clear and unmistakable error on part of the above January 17,2012 decision from the Philadelphia VARO and to correct it.
This is a separate issue from my recent Section 1151,38 USC claim filed with the Buffalo VARO on September 21, 2012.
I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “
The VA's CUE lies within this statement on page 2 of the January 17th,2012 decision :
“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. Exhibit A
That is wrong based on all evidence in VA's possession at the time of the veteran's death.
Page One of Seven
The veteran, Rodney F. Simmons was totally and permanently disabled by his August 9,1992 Section 1151 CVA until his death on October 14, 1994. His”residuals”certainly did not alter the medical fact of his total and permanent disability from his Section1151 ,38 USC “ as if service connected” stroke on August 9,1992.
He was certainly housebound and that is not the issue here.
The VA's failure (CUE) to consider and evaluate the evidence VA had in their possession manifestly altered the outcome of the decision referred to above ,January 17,2012, to my detriment as the claimant and surviving spouse of the veteran, Rodney F. Simmons.
CUE regulations are found within 38 USC, 5109A.
The BVA within http://www.va.gov/ve...es5/0844495.txt, clearly
defines the same basis for my request that the VA call a clear and unmistakable error on itself due to an obvious violation of the evidentary requirements of basic VA case law.
As the BVA decision states ,
In part:“The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been.......
(I went on with some citations regarding BVA decisions as to the LEGAL issue.
I then enclosed Exhibits A through N and explained every exhibit to the VA in terms they could understand and made the point that each piece of evidence I enclosed warranted a 100% rating from Aug 1992 to Oct 1994.
SSDI records, Student Loan discharge, VA Neuro 100% P & T med recs, Letter from Acting Under Sec VA, R. Vogel 1994 letter to the veteran, claims judge, Agent Orange settlement fund, etc etc, the veteran's Voc Rehab records,FTCA stull, MRI, autopsy... real solid stuff.
all clearly stating or revealing medically that the veteran was 100% P & T from Aug 1992 to Oct 1994 due to his CVA which VA admitted they caused under 1151 and FTCA settlement. They owe me more cash.
Even if they loose most of that evidence , any piece could stand alone anyhow.
ALL of the evidence except for one reference (which can be checked) was in VA's possession at time of their CUE in the January 2012 award letter.
Now I dont have to finish that article on this maneuver.
To get VA to CUE itself requires
1. a legal error in a decision challenged DURING the appellate period (meaning the day of the decision and within the NOD timeframe)
2. a legal error that manifested an altered outcome to the claimant's detriment (ie improper retro amount)
3. A formal request that VA CUE the decision, supported by copies of probative legal/medical evidence that was in VA's Possession at time of the decision that the claimant is requesting themselves to CUE. This type of request must be made within the appellate period.
I might post ,my Dec 2011 CUE request too----I did that by Fax,IRIS, and phone with VA Central and don't have a lot of hard copy stuff on it. VA Central turned on that one in 3 weeks.
My 2005 CUE request started out with Fax stating "What the Hell is this," sent to the Director of the Buffalo VARO and IRIS complaint to VA Central and copy in email to my wimpy vet rep.
They (VA)moved on that fast too.
I think that one is documented 2 PCs ago.
If a veteran or surviving spouse like me has a solid leg to stand on, (with evidence of CUE criteria above) they then need to kick the VA in the A-- with their other foot ---during the appellate period. They need to watch the NOD deadline clock too.
VA keeps thousands in comp when vets don't challenge an erroneous decision ,even if it is an award letter.
Either with this maneuver or by preparing their NOD and appeal , shaped ....not for the RO these days, or for the black hole AMC,
but shaped instead, for the BVA.
Due to the critical backlog.
This doesn't stop the NOD clock!
If the VA ignores or farts around with this type of request,without a proper resolve, make sure you file a timely NOD,raising the same legal error issues.
Edited by Berta, 19 January 2013 - 08:01 AM.