Brugada Syndrome w/ AICD Implant Rated 10%

[jwesley]

http://www.va.gov/vetapp16/Files3/1619696.txt

^^^^ That is my decision letter from the bva judge.

On ebenefits it is rated 10% for brugada syndrome WITH AICD IMPLANT

now they didnt rate it correctly i filed a notice of disagreement an idk if she sent it to the DRO or to the other option... how long do I have to wait for them to fix their mistake another 4-5 years!?

[Berta]

You can request that they call a CUE Clear and Unmistakable Error on the recent decision and tell them exactly why.

if you file the CUE request via IRIS as a Complaint it might go much faster then a NOD will.

I am sure I went into more detail on this in one of your past posts.

 

[Berta]

I will try to find the template I used for Patsy and Jim here that I posted in your past topic :

I suggested they ask VA to CUE themselves and they did ...it was the same issue AICD.

 

[Berta]

You could use this as a template-

Name address                                                      C file Number

 

I request the    …(Name  of Regional Office ) to call a clear and unmistakable error on their recent decision  (CUE) under the auspices of 38 USC 5109 A ,dated ( date of decision ) and enclosed as Exhibit A, prepared by this individual ( put the alpha numeric here that appears after re: on the top right hand side of the decision.)

 

I have enclosed the complete rating schedule for this disability ( DC 7011) as Exhibit B

( copy it all from the post here that someone else posted in one of your other topics)

The Rating schedule was not applied to my claim properly because the percentage was only 10%, whereas it should have been, per VA’s Schedule of Ratings, 100% regarding my disability and the AICD implant.

I cite violation of 38 CFR Part 4, Subpart A, General Rating Policy and specifically

I cite 38 CFR 4.1- Essentials of evaluative rating,

“§ 4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

[41 FR 11292, Mar. 18, 1976]”

 

 

Also I cite   38 CFR 4.6: - Evaluation of evidence.

“The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. 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.”

And also I cite:

“§ 4.21 Application of rating schedule.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.

[41 FR 11293, Mar. 18, 1976]”

 

Based on the medical evidence in VA’s possession and the above citations from 38 CFR, the VA’s error in the rating of 10% which should have been 100% ,manifested an altered outcome, to me, by depriving me of my proper retroactive compensation for this disability.

 

I request a prompt response.                           Sincerely

 

Exhibit A Decision dated ( date)   ---pages

Exhibit B  (VA rating schedule for Diagnostic code 7011--- pages)

 

You can mail this (I always use Priority Mail with Tracking slip or file it as a complaint at IRIS).

I think you dealt with Buffalo? I filed a couple of CUEs with them via IRIS.

They make plenty of errors.

 

 

 

 

[jwesley]

Thank you so much! I missed this on my last post ^^^^ I will send that out asap! I will let you know the results!

[jwesley]

ok I got all my ducks in a row with it.. I take it to a legion rep, he says he will lose his job if he submitted it. and then my state rep says that is the last step if the nod doesn't go through.

I was also told if I submit a cue and it doesnt go through there is no appeals no nothing, I lose my benefits for it!? is this true!?

[Berta]

The Legion rep is full of crap.

I wonder how many other vets he told that BS to. You definitely have, from what I have understood here, from your posts , a very valid CUE claim basis. Then again it seems your actual POA is with a state rep,who has a point but I recommended asking them to call a CUE on themselves, but to watch for the one year NOD deadline, so that if they don't resolve this by then,  the NOD will be timely, if filed within that year from the decision.

"I was also told if I submit a cue and it doesnt go through there is no appeals no nothing, I lose my benefits for it!? is this true!?"

If the NOD is filed within that first year after their date of any CUE denial, you are still within the full appeal period.

My SMC CUE (filed 2004) and my IHD CUE (filed 2003) appeared that VA was working on a reconsideration request I made at time of first denial.My NOD was filed in time.

Then on around 2011-12 I learned that those claims were set for BVA transfer but a miracle happened... VA had put IHD onto the AO List, and I immediately wrote to the Nehmer RO handling my AO IHD death claim that the CUEs not onloy were filed prior to the AO IHD claim, the outcome of those CUEs would have impact on their AO decision.

They did. The Nehmer VARO awarded the AO IHD ,the IHD 2004 CUE claim, and also the SMC CUE claim.

The worse thing I ever did was when I got a 1998 decision that held 4 CUEs in it ( the others were awarded too) my state vet rep told me not to even file a NOD because since this was a Section 1151 decision, it was 'different' than regular claims. By 2003 I filed a new claim on DMII death due to AO and got no support at all for that. At some point I dumped the state POA and the 1998 decision still bothered me so I filed 2 above CUEs on it at that point.

My reps tried to screw me over big time and also one rep was asking me to help him with some claims he had...while they were also denying me the right to a legal VCAA letter.

Long story -things changed when I filed a long complaint with evidence with the 0GC.

It was a delightful day for me when I emailed the state attorney for this bunch that I had succeeded not only in the CUE claims and the DMII claim ,inspite of their piss poor representation, and even BVA agreed that my VCAA rights had been violated.

One reason I am here and often repeat what others probably get tired of reading...is that my husband and I ,as his widow, and then even my daughter, as a vet, went through just about every type of BS and deliberate attempts on VA's part as well as these lousy vet reps, to deny every single claim we had....and doing it ,by breaking their own regs and even trying to get me to accept a 'regulation' the bastards at my RO made up.

Do what you feel is best for you to do.Personally I would be whipping that CUE off to them YESTERDAY.

I won 4 Cues for me, one for my daughter, and have three separate DIC awards....

AO DMII contributing to death 2010

AO IHD contributing to death 2012

Death by VA  Sec. 1151/FTCA 1998

100% SC PTSD posthumous award.

Chapter 35 paid for the last half of my degree, I have CHAMPVA, I am a Gold Star wife,and also I received the REPS benefit., VA Loan guarantee etc etc etc....but if I had stayed with my lousy vet reps,thinking they knew what they were doing,  I would have won nothing.

Someone is giving you advice the same time their head is up their ass.

Read Gastone's recent post...he just won a CUE claim!

 

 

 

 

 

 

 

 

 

 

 

 

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Edited August 25, 2016 by Berta