Pretty Sure I Can Ask The Va To Cue Themselves?

[livingrock21]

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

[Ricky]

Just a note - the C&P will not be thrown out of the claim file. They will give you another one if you are successful with your appeal.

[livingrock21]

Clown Man,

It doesn't pertain to my claim. It was for the wrong condition. I did actually get them to admit that with the last appeal(partial grant), they agreed they had me listed under the wrong diagnosis.

Can I atleast request them to not use this evidence due to what I just stated?

Thanks Clown Man..

[Ricky]

Clown Man,

It doesn't pertain to my claim. It was for the wrong condition. I did actually get them to admit that with the last appeal(partial grant), they agreed they had me listed under the wrong diagnosis.

Can I atleast request them to not use this evidence due to what I just stated?

Thanks Clown Man..

You can definitely bring that argument up request/demand that it not be considered during the rating of your claim.

[free_spirit_etc]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A--General Policy in Rating

Sec. 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]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A--General Policy in Rating

Sec. 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same

disability in the same language. Features of the disability which must

have persisted unchanged may be overlooked or

[[Page 336]]

a change for the better or worse may not be accurately appreciated or

described. It is the responsibility of the rating specialist to

interpret reports of examination in the light of the whole recorded

history, reconciling the various reports into a consistent picture so

that the current rating may accurately reflect the elements of

disability present. Each disability must be considered from the point of

view of the veteran working or seeking work. If a diagnosis is not

supported by the findings on the examination report or if the report

does not contain sufficient detail, it is incumbent upon the rating

board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

[hollywoodnc]

Cowgirl,

As much as I don't really want to keep my VSO in the loop, I think your right. It just seems like all my VSO has done for me is actually harm my claim. It's sad, but people around here are so much more educated(as far as VA regs go) than him, or any of the other VSO's in that office. I've often thought about checking out the other VSO's.

Timetowin,

I def. see what your saying, and that would be definite grounds for a CUE. Even if they said they included the material evidence in their review it's obvious they didn't, or the outcome would have been drastically different.

I may scan the memorandum from my active duty PCP so you guys can see what I'm talking about. The piece of information that they seem to keep "forgetting" about. The first page in my SMR. It lists everything needed for the rating criteria, the only thing that's not listed is covered by SSDI.

I may be wrong though, if I am, please let me know.

Thanks again to all!

LivingRock...

I agree with Cowgirl, when she states that you should keep your VSO in this matter. If you are dissatisfied with his action(s)(or lack thereof), you should consider contacting the National Headquarters of the VFW, and filing a complaint against him/her.

Also insist on all replies (cc's) made by this VSO to the DVA in support to your case.

[hollywoodnc]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A--General Policy in Rating

Sec. 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]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A--General Policy in Rating

Sec. 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same

disability in the same language. Features of the disability which must

have persisted unchanged may be overlooked or

[[Page 336]]

a change for the better or worse may not be accurately appreciated or

described. It is the responsibility of the rating specialist to

interpret reports of examination in the light of the whole recorded

history, reconciling the various reports into a consistent picture so

that the current rating may accurately reflect the elements of

disability present. Each disability must be considered from the point of

view of the veteran working or seeking work. If a diagnosis is not

supported by the findings on the examination report or if the report

does not contain sufficient detail, it is incumbent upon the rating

board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

FreeSpirit...

I would like to address this in specifics:

"If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating

board to return the report as inadequate for evaluation purposes.

Absolutely TRUE. With a good majority of these C&P exams being conducted by a group of DVA paid quacks, I am now attacking their validity.

One of these jackasses had claimed that I had no GAIT; YET, she measures my legs and comes up with a one inch differential from left and right?! Hmmmm....?

This moron concentrated more on trying to discredit my claim, yet lists the discrepancies in leg length.

This either makes my C&P exam invalid, or any contradictory law cannot be applied to such and idiotic evaluation which contradicts itself.

I insisted that this report be considered as MOOT.

I also stated that the BVA ordered the DVA to schedule me for an Orthopedic exam, and the AMC instead schedules me for an exam with a 'General Practitioner'. This to, makes the exam INVALID or MOOT.

This is my argument, and it is just additional ammunition that I can use against these retards in a courtroom!

This moronic administration thinks that we are all dummies, and won't contest their unorthodox, illogical procedures.

My focus is on these stupid and incompetent morons, who supposedly possess a degree in medicine. I cringe every time I attend these C&P exams.

From here on in, I WILL enter into one of these exams with a digital recorder, a knowledge of my conditions, including examination techniques, and I will question them as to what their findings are! I advise you to do the same.

These exams are clearly one sided, and I won't be subjected to any further trickery or LIES documented on my record. Those who do lie, will be held accountable for such in front of a judge.

The bottom line...

If a Coroner has a recording devise to document a cause of death, then I am going to have a record of my condition(s) and insure that I receive a fair and just exam! I'm sick and tired of being told one thing, and something totally different is written once I leave the room!

Watch and see how fair C&P exams will become, when doctors are recorded, and held accountable for their biased decision making!