Pretty Sure I Can Ask The Va To Cue Themselves?

[livingrock21 0]

I posted here about a week and a half ago. Here's my prior post : http://www.hadit.com/forums/index.php?show...hl=livingrock21 .

I'll give a quick run down on my situation again.

I filed my claim in June of 07 through the BDD program. Was supposed to get my findings 90 days after that, but didn't get them until the end of Nov 07. I imediately noticed that they rated one of my conditions under the wrong VASRD code. They had me rated for Paralysis of the median nerve, and I'm supposed to be rated under Erythromelalgia (7119). Two comepletely different things, that aren't even medically related. I appealed a few days after getting my original findings. The statement of the case that I got from that was denied. Appealed again, this time they partially granted it. They agreed they messed up on the DX, but didn't change the percentage like they should have. I'm on my final appeal now. I know it could take years before I get results now. There are a few reasons for CUE. The main reason obviously being the fact that they rated me improperly to begin with, and both conditions have different rating criteria so how could the percentage stay the same. Also, every time I appealed, I filed for reconsideration. I sent in formal letters. No where in the letters did it say I wanted to file a Notice of Disagreement. Clearly stated that I'd like them to reconsider my claim.

I was under the assumption that an appeal had to be closed out before one could ask for a CUE. I read a case earlier that proved me wrong.

My questions are:

- Does everyone think I have a pretty good basis for a CUE?

- What's the average wait time for a CUE if I can keep my claim at the RO?

- Any other ideas?

Another quick question. What's the criteria for a hardship(getting a hardship to move your claim faster)?

People that read my other thread,

I thought my VSO was actually doing something to help me. He said yeah, send in your evidence(SSDI qualification letter stating conditions). Keep in mind there's alread a FORM 9 NOD in for me right now, he decided to open a new claim for increase. Yeah, that's really helping things. HAHAHA. All it's doing is slowing things down. Thinking about switching VSO's from the VFW to the DAV. Any opinions on that?

Thanks for the help in advance everyone. You guys give such great information!

Edited February 28, 2009 by livingrock21

[jbasser 0]

A cue is a collatarel attack on a FINAL decision. A claim must be final, 1 year after a decision has been made. All other instances it is considered a reopened claim.

Now the VA can call a cue on itself at any time.

That is your best option. Meet with them with regs in hand to show them what the error was.

J

Edited February 11, 2009 by jbasser

[livingrock21 0]

jbasser,

Thanks for the quick response. Would you happen to know what regs I would want to take to the RO with me? I'm planning on going to the RO here very soon and review my C file anyway. I called the 1800 number(can't call the RO directly anymore), and asked them to set up an appointment for me to go down and view my C file, they said it wasn't needed. I guess only certain RO's require appointments.

Sorry for being so niave as to the direct regulations.

Also, I'm going to try and find that post that had a particular CUE claim that was filed before the final decision. If I find them here soon, I'll edit and put in a link.

[livingrock21 0]

Jbasser,

Here's an excerpt from what I was talking about. It's regulations I believe actually taken from a BVA hearing on a CUE.

".... The United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE, stating that "[c]lear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE denotes "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992). "It must always be remembered that [CUE] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995).

A finding of CUE "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). ...."

Am I misinterpreting the information here?

I was looking into the hardship cases a little more. I think maybe I could use this in my favor also. Here's another excerpt from another post on expiditing due to hardship. The qoute is from spike.

Four Ways to expedite a claim for Hardship....

"

1. Proof of financial hardship (extreme cases)

2. Age 70+

3. Terminal Illness

4. Homeless

--------------------

-Spike-

Vet Advocate

--------------"

1. I'm homeless(staying with family, if they decided to boot me at any moment I'd be on the street. I can't afford a place to live).

2. Can hardly pay bills.

Help please. I don't know what I would do with out you guys. Like I said in my first post of this thread, my VSO is useless. I thought maybe he was a winner(promised to get my claim reviewed by STAR, ect.), that was a real misinterpretation. LOL. You guys really are great. I appreciate all the help thus far.

[jbasser 0]

Your Cue should be based on the fact that the original rating was erroneous based on the wrong diagnosis.

I believe it will fly.

Here is the reg for diagnosis change.

§ 4.13 Effect of change of diagnosis.

top

The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted. The relevant principle enunciated in §4.125, entitled “Diagnosis of mental disorders,” should have careful attention in this connection. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms. This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with §4.7.

[29 FR 6718, May 22, 1964, as amended at 61 FR 52700, Oct. 8, 1996]

Edited February 11, 2009 by jbasser

[livingrock21 0]

Thank you jbasser!!!!! Your awesome!

Any other insight on any of the other questions?

Anyone??

I'm so appreciative of everything and anything anyone has to say. Positive or negative. This forum really is the greatest! Once again, thanks to all.

-----------------

I may be taking a trip down to the VARO tomorrow and viewing my C-file, talking to my VSO(possibly changing), and asking for a CUE.

Are CUE wait times usually shorter than a normal NOD?

Anyone think I may have a chance with this hardship?

I could possibly file a CUE and hardship.?