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Pretty Sure I Can Ask The Va To Cue Themselves?

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livingrock21

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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!

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Ricky is dead on. It would be wise to get them to admit and call cue on themselves. Go meet with them if you can. Present your evidence and present your current disability and both sets of regs. One is under neurological and the other one is under cardiovascular.

As far as a hardship, I know how you feel. I know other folks who are actually worse off waiting for these folks to get it right. You can ask for it but personally I think they could care less.

You know where you stand so go after them.

John

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jbasser: Forgive me for dissagreeing with you, but IMHO the VA has already corrected their Dx error, if I am reading what livingrock has said. The only problem that exists now is a difference of opinion on the percentage that was granted. Even though the percentages may appear to be the same, the two different condition have different rating requirements. The VA is known for low balling the percentage of dissability that Veterans suffer and this may well be the case here.

livingrock should appeal the low ball percentage using the medical evidence meets the rating schedule to show how it meets a higher rating. Again, the CUE was resolved when the VA corrected the DX Code.

Things may appear to be bad and you feel that more money will make it better at this time, but until your claims are finally dicided to your satisfaction or at least the rightful rating, take this time to check into any program that will help you get by for now, and any that by helping you, help those who are providing a roof over your head.

Rockhound Rider :D

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John and Ricky,

Thanks for the great info guys.

Rockhound,

Maybe your right, but what we were talking about basing the CUE off of makes perfect sense. You can't change the diagnosis especially from one body system to another with out changing the percentage. If you look at the rating criteria, their two totally different animals.

Also, I wouldn't have to base my CUE soley off of this. I could base it off the fact that every time I sent in an appeal letter(have copies along with fax confirmation) they were for reconsiderations, not NOD's. In none of them, anywhere, did it state Notice of Disagreement. As a matter of a fact, I never used the words Notice and Disagreement. Yet, they put it in their system as such, which obviously takes longer then to reconsider the original claim. There were a few other things I felt I could base my CUE off of, but these would be the best. I have to do something at this point. My VSO decided on his own(he was supposed to be doing something else, pretty much convinced me he was going to be working a miracle for me) to put in for a whole new claim.

Rockhound,

Another thing, if you look further down, at the case I posted, it clearly states...

"[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."

If you seen the evidence, and their decision to keep me rated at 30%, you would say the same thing everyone else I showed the evidence said. It's black and white, there is no grey area. I just have to figure out which route I'm going to take. I'm heading there tomorrow to take care of business.

Everyone,

Hopefully I'll get some more advice before I leave tomorrow to head down there.

You guys really have been great!

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John and Ricky,

Thanks for the great info guys.

Rockhound,

Maybe your right, but what we were talking about basing the CUE off of makes perfect sense. You can't change the diagnosis especially from one body system to another with out changing the percentage. If you look at the rating criteria, their two totally different animals.

I understand that they are different, I'm just saying that, even though the percentage appeared to remain the same, the Rater may have only low balled the new criteria, which they are quite known to do. It may only be only a coinsident that the percentage ended up the same as the old diagnostic criteria. Show the rating schedule and how the evidence supports a higher percentage than what it was rated at, during your appeal or DRO.

Also, I wouldn't have to base my CUE soley off of this. I could base it off the fact that every time I sent in an appeal letter(have copies along with fax confirmation) they were for reconsiderations, not NOD's. In none of them, anywhere, did it state Notice of Disagreement. As a matter of a fact, I never used the words Notice and Disagreement. Yet, they put it in their system as such, which obviously takes longer then to reconsider the original claim. There were a few other things I felt I could base my CUE off of, but these would be the best. I have to do something at this point. My VSO decided on his own(he was supposed to be doing something else, pretty much convinced me he was going to be working a miracle for me) to put in for a whole new claim.

I would request a DRO and point this out so that it will be on the records. I once submitted a CUE claim and it was taken as a claim to reopen with new and material evidence. I let it slide because by then I had learned more about the CUE process and could see that the way I had presented it, it did not meat all the standards of CUE. Make sure that your CUE claim does.

Rockhound,

Another thing, if you look further down, at the case I posted, it clearly states...

"[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."

If you seen the evidence, and their decision to keep me rated at 30%, you would say the same thing everyone else I showed the evidence said. It's black and white, there is no grey area. I just have to figure out which route I'm going to take. I'm heading there tomorrow to take care of business.

Everyone,

Hopefully I'll get some more advice before I leave tomorrow to head down there.

You guys really have been great!

Rockhound Rider :rolleyes:

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Thanks for the information RockHound.

I'm fluttered at this point. No one can tell me exactly whats going on. I can't get a hold of my VSO now, and he wont be back until Wednesday.

Their telling me that my folder is still at the RO. Since I'm on my third and final appeal though, my claim has to go to the BVA? Correct? Once again, I think my VSO BS'd me. He said he was going to try and keep my folder at the RO? Why would he want this? Also, this isn't possible is it? It has to go to the BVA, unless a formal DRO hearing is scheduled with my RO??

I called the 1-800 number and they said the DRO there had my folder. Why would he have my folder if it had to go to the BVA? It also says they recieved the SSA information I sent them. The fact that I'm recieving SSDI for the same SC, and the fact that they only used my SMR to evaluate me(didn't even get evaluated by SSA doctors).

I'm leaving stuff out. There's other things about my Appeal I'm concerned about. I know I should be CUE this, but don't know where to start with out my VSO. Not sure what the basis should be(there are multiple mistakes conducted by the VA). AGGHH!

I don't know what I should be doing, who I should be talking to.. I feel like my claim is a mess. Don't know what I'd do with out you guys. You guys are the only thing keeping me sane!

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Thanks for the information RockHound.

I'm fluttered at this point. No one can tell me exactly whats going on. I can't get a hold of my VSO now, and he wont be back until Wednesday.

Their telling me that my folder is still at the RO. Since I'm on my third and final appeal though, my claim has to go to the BVA? Correct? Once again, I think my VSO BS'd me. He said he was going to try and keep my folder at the RO? Why would he want this? Also, this isn't possible is it? It has to go to the BVA, unless a formal DRO hearing is scheduled with my RO??

I called the 1-800 number and they said the DRO there had my folder. Why would he have my folder if it had to go to the BVA? It also says they recieved the SSA information I sent them. The fact that I'm recieving SSDI for the same SC, and the fact that they only used my SMR to evaluate me(didn't even get evaluated by SSA doctors).

I'm leaving stuff out. There's other things about my Appeal I'm concerned about. I know I should be CUE this, but don't know where to start with out my VSO. Not sure what the basis should be(there are multiple mistakes conducted by the VA). AGGHH!

I don't know what I should be doing, who I should be talking to.. I feel like my claim is a mess. Don't know what I'd do with out you guys. You guys are the only thing keeping me sane!

i know where you are at, my vso seems disinterested, and i do not know what the hell is going on just hired lawyer . sent forms today wish they were there yesterday . i filed for increase at ro wound up at appeals mgmt now back to ro for more development . i am sick of the whole mess nobody wants to tell you anything just stall tactics even by vso . i believe they are in cahoots together i cant stand them.

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