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'Lack of Rating' CUE claims

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Berta

Question

I almost forgot and went back to my 2004 CUE for heart disease because I forgot what regs I used.

 

"M21-1, Part VI         March 19, 2004 M21-1, Part VI         March 19, 2004

Change 113 

      Rescission:  Changes 106 and 108. 

 

3.09  ISSUE 

      a.  General.  Clearly state all issues of entitlement identified by the claimant, or those which can be reasonably inferred from the facts or circumstances of the claim.  If there is more than one issue, list the issues by number.  In RBA, the issues appear under the identifier “ISSUE.”  In RBA 2000, the issues appear under the identifier “DECISION.” 

      b.  Compensation Ratings.  Consider all claimed disabilities in the rating decision.  Also consider all chronic disabilities found in the service records even if they were not claimed.  This is to be done on the original rating, or subsequently in cases where additional service medical records are received following an initial rating decision.  Do not consider any of the following conditions unless specifically claimed: 

      (1)  Acute and transitory disorders without residual disability; 

      (2)  Noncompensable residual disability from venereal disease; 

      (3)  Disabilities noted only on an induction examination, or disorders recorded by history only; 

      (4)  Disabilities found by authorization not to have been incurred "in line of duty" (see pt. IV, par. 11.03); and 

      (5)  Clinical findings such as cholesterol or blood sugar levels that are not generally recognized as "disabilities" or subject to service connection. "

My actual 2004 CUE claim which I finally found was very short:

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A

.

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

I had to support that above statement with the M21-1 excerpt above, and a re- send of the VA OGC malpractice report.This was a claim that stemmed from my husband's 1151 claim, that he wanted me to continue if they killed him and he had mentioned potential heart disease in his 1151 claim, because we were aware of some of the stroke malpractice at that time and he figured if they couldn't even diagnose his stroke after weeks of hospitalization for an "inner ear infection" (which he didnt have at all,) could not walk, talk well, couldn't eat or drink, couldnt swallow, and could not move his eyes normally, they probably buggered up something else too. He was right..

 

I hope someone here has the time to check out this regulation in M21-1MR and see if their have been any changes to it since 2004.

It was the controlling regulation at time of the CUE in filed in 2004.

CUES depend on dates of regulations in place at time of the alleged CUE.

 

 

  

 

 

 

 

 

 

 

 

 

 

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I would do both...however I would file the CUE prior to the NOD, maybe just by a few days,  and then in the NOD state that the CUE claim was filed first and that a proper decision for the CUE will impact on the NOD ( or even render it moot) but don't tell that I added the moot part...that is between you and me.

That scenario worked for me when Nehmer was adjudicating my AO IHD death claim.

It was 4 CUES in one decision..maybe 5 I forget.

I made the point to the Nehmer RO that ( since it was 2012 already) and the CUEs were filed in 2003-2004, finally set for BVA transfer, but still at my RO, that those CUEs should be adjudicated first because they were contingent on a proper AO IHD award.Nehmer agreed and awarded. (one CUE is still open but I keep forgetting about it.I think the RO did too)

You are in the same boat so to speak. The same decision had 4-5 CUEs, the last one was resolved in mere weeks earlier this year(because I raised a ruckus) same decision in 1998.

 

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  • Content Curator/HadIt.com Elder

It sounds like you were very specific and filed a claim for A, B, C, and D.

Have you happened to check ebenefits to see how your claim is described?

This is helpful because the VA might work some claims now and others later. I have had this happen to me, but at least they indicated the other claims were 'deferred'.

I have seen the VA change the claimed disability names to match what is in the rating schedule (i.e. 'breathing problems' gets changed to 'asthma, bronchial'). However, the VA is also known to try and lump some things together into a single claimed condition. Sometimes this happens due to pyramiding, but that should not apply in your case. However, sometimes this is done in error.

 

How long ago did you receive the letter from the VA?
 

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Hello Ms. Berta!  

Thanks for the quick response. I sincerely appreciate the help and your opinion.  Looks like I have some homework to do on how to prepare the CUE.

 

Hello Vync,

The claim was for peripheral neuropathy, in both hands and feet, so in that sense it was specific I guess.  I listed them as separate conditions (hands/feet) on the claim form when I filed, since each has a different diagnosis.  As an FYI- For the rating of this overall condition, the VA lists specific codes for each individual nerve instead of a single code.  So while I claimed the condition, in the supporting documents I also indicated the disability (noted by the Doc) on each nerve, hoping to make it simple enough for the claim examiner to follow the dots.  They followed along great for the hands, but basically ignored the feet.  Its almost like a typo or like i said above they just quit, at least thats how it seems anyway.

I did watch the claim progress on e bennies.  I had a sense of foreboding when I saw they approved the hands, adjusting the verbiage to match the appropriate disability coding for the hands of course and the claim for the feet dropped off the radar.   The claim is now closed of course but it reflects what was awarded, not what was originally submitted, nothing left open or deferred on even or in the award letter.  I submitted several different claims simultaneously.  One was awarded outright, #2 they combined several into one rating and this is #3.   ( I am kicking myself for not taking a screen shot of what was on E ben. )  So now I have to craft the appropriate appeals.  The letter was issued the end of Sept.       

Thanks for the assistance, I appreciate any and all advice!

 

 

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